[Senate Report 104-249]
[From the U.S. Government Publishing Office]
Calendar No. 361
104th Congress Report
SENATE
2d Session 104-249
_______________________________________________________________________
IMMIGRATION CONTROL AND FINANCIAL RESPONSIBILITY ACT OF 1996
_______
April 10, 1996.--Ordered to be printed
Reported under authority of the order of the Senate of March 29, 1996
_______________________________________________________________________
Mr. Hatch, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 1664]
The Committee on the Judiciary reports an original bill (S.
1664) to amend the Immigration and Nationality Act to increase
control over immigration to the United States by increasing
border patrol and investigative personnel, and detention
facilities; improving the system used by employers to verify
citizenship or work-authorized alien status; increasing
penalties for alien smuggling and document fraud; reforming
asylum, exclusion, and deportation law and procedures; and to
reduce the use of welfare by aliens; and for other purposes;
and recommends that the bill do pass.
CONTENTS
Page
I. Purpose and summary..............................................2
II. Need for current legislation.....................................3
III. History of current legislation...................................8
IV. Section-by-section analysis......................................8
V. Committee action................................................25
VI. Cost estimate...................................................36
VII. Regulatory impact statement.....................................37
VIII.Additional views of Senator Hatch...............................38
IX. Additional views of Senator Abraham.............................40
X. Additional views of Senators DeWine, Abraham, and Feingold......42
XI. Additional views of Senators DeWine, Kennedy, and Feingold......43
XII. Additional views of Senators Kennedy, Simon, and Leahy..........45
XIII.Minority views of Senators Kennedy and Simon....................58
XIV. Minority views of Senator Leahy.................................61
XV. Minority views of Senator Feingold..............................67
XVI. Changes in existing law.........................................70
I. Purpose and Summary
The committee bill is intended, first, to increase control
over immigration to the United States--decreasing the number of
persons becoming part of the U.S. population in violation of
this country's immigration law (through visa overstay as well
as illegal entry); expediting the removal of excludable and
deportable aliens, especially criminal aliens; and reducing the
abuse of parole and asylum provisions. It is also intended to
reduce aliens' use of welfare and certain other government
benefits.
Title I proposes a number of law enforcement and other
control measures. Law enforcement measures include: (1)
Providing additional enforcement personnel and detention
facilities; (2) Authorizing a series of pilot projects on
systems to verify eligibility to be employed in the United
States (and eligibility to receive public assistance or certain
other government benefits), and also requiring improvements in
birth certificates and driver's licenses to reduce their
vulnerability to fraudulent acquisition and use; (3) Providing
additional investigative authority and heavier penalties for
document fraud and alien smuggling; (4) Streamlining exclusion
and deportation procedures, and increasing the disincentives
for repeated illegal entry or visa overstay; (5) Establishing
special procedures to expedite the removal of criminal aliens;
and (6) Miscellaneous other enforcement-related provisions.
Other control measures in title I include: (1) Tightening
the Attorney General's parole authority (which authorizes the
entry into the U.S. of otherwise excludable aliens); (2)
Amending the procedures used to consider asylum applications,
to reduce the likelihood that fraudulent or frivolous
applications will enable deportable or excludable aliens to
remain in the U.S. for substantial periods; and (3) Repealing
the Cuban Adjustment Act (which allows any Cuban national to
obtain permanent resident status outside normal immigration and
refugee channels), with certain exceptions.
Title II of the committee bill contains several sections
relating to financial responsibility: (1) Provisions to reduce
the likelihood aliens will become a burden on the taxpayers of
this country--including a prohibition on use by illegal aliens
of welfare and certain other government benefits; a
modification of current law on the deportation of aliens if
they become a ``public charge''; a requirement that sponsor
affidavits of support be legally enforceable; a requirement
that when welfare agencies calculate financial need, they
``deem'' that the income and assets of a sponsored alien
include that of his or her sponsor; and (2) Provisions to
reimburse States for providing Federally mandated emergency
medical services to illegal aliens.
II. Need for Current Legislation
The committee bill is needed to address the high current
levels of illegal immigration; the abuse of humanitarian
provisions such as asylum and parole; and the substantial
burden imposed on the taxpayers of this country as the result
of aliens' use of welfare and other government benefits.
No matter how successful Congress might be in crafting a
set of immigration laws that would--in theory--lead to the most
long-term benefits to the American people, such benefits will
not actually occur if those laws cannot be enforced.
Unfortunately, U.S. immigration law is violated on a massive
scale.
Just one indication is the number of foreign nationals
apprehended while in violation of U.S. immigration law.
Apprehensions rose dramatically in the 1970's, reaching a total
of 8.3 million for the decade. The increase continued in the
1980's, reaching a high of 1.8 million in fiscal year 1986.
Following passage of the Immigration Reform and Control Act of
1986, apprehensions declined sharply in 1987, returning to the
levels of 1983-84. By 1989, total apprehensions fell below one
million for the first time since 1982. However, apprehensions
began to rise again in 1990 and have been above one million
every year since.
The committee bill proposes numerous measures to reduce
illegal entry and visa overstays; to reduce alien smuggling and
document fraud; and to expedite exclusion and deportation,
especially of criminal aliens. These are described in the
section-by-section analysis for sec. 101-108 (Additional
Enforcement Personnel); sec. 111-120E (Verification of
Eligibility to Work and to Receive Public Assistance); sec.
121-133 (Alien Smuggling; Document Fraud); sec. 141-159
(Exclusion and Deportation); sec. 161-170E (Criminal Aliens);
and sec. 171-184 (Miscellaneous).
The bill's proposals to reform several humanitarian
provisions of current law are described in the section-by-
section analysis for sec. 191-192 (Parole Authority); sec. 193-
196 (Asylum); and sec. 197 (Cuban Adjustment Act).
Measures related to financial responsibility, including
provisions to reduce use by aliens of welfare--and, with
respect to illegal aliens, certain other government benefits--
and provisions to reimburse the States for certain Federally
mandated emergency medical services, are described in the
section-by-section analysis of sec. 201-210 (Receipt of Certain
Government Benefits) and sec. 211-212 (Miscellaneous
Provisions).
Two issues deserve some comment and analysis in addition to
what is contained in the section-by-section analysis. These
are: (1) to ``Employer sanctions'' (i.e., the penalties against
knowingly employing illegal aliens) and verification systems,
and (2) Alien' use of welfare, including the subjects of
sponsor liability and ``deeming'' (the requirement that when
calculating the financial need of sponsored aliens, for
purposes of eligibility and benefit amount, welfare agencies
attribute the income and assets of a sponsor to the alien).
Employer sanctions and verification systems
It has been recognized for many years that the primary
magnet for most illegal immigrants is the availability of
jobs--jobs that pay much better than what is available in their
home countries.
It is also widely recognized that satisfactory prevention
of illegal border entry is unlikely to be achieved solely by
patrolling the very long U.S. border. Our border is over 7,000
miles on land and 12,000 miles along what is technically called
``coastline.'' Furthermore, the real sea border consists of
over 80,000 miles of what the experts call ``shoreline,''
including the shoreline of the outer coast, offshore islands,
sounds, bays, and other major inlets.
And, patrol of the border is, of course, inadequate to deal
with foreign nationals who enter the U.S. legally--for example,
as tourists or students--and then choose to violate the terms
of their entry, by not leaving when their period of authorized
stay expires or by working at jobs for which they are not
authorized. The committee strongly believes in increased
investigation and punishment of visa overstayers. However, this
is not by itself likely to solve the problem. As is well known
by experts--and evident through common sense--the certainty of
punishment is often at least as important as its severity.
Unfortunately, the probability that a visa overstayer will face
punishment is now quite small and is likely to remain so. These
individuals are not, by and large, engaged in illicit behavior
that may occasionally be observed. There need not be anything
in the way they behave to show their immigration status.
Indeed, with the proper set of fraudulent documents, a visa
overstayer can appear just like anyone else, especially in an
area with many immigrants. He or she can even pose as a U.S.
citizen.
Most authoritative analyses of the problem of illegal
immigration--illegal entry as well as visa overstay--have
recommended a provision such as that in the 1986 Immigration
Reform law making it unlawful to employ illegal aliens. These
studies include that of 10 years ago by the Select Commission
on Immigration and Refugee Policy and the current work being
done by the U.S. Commission on Immigration Reform.
Such studies also recognize that an employer sanctions law
cannot be effective without a reliable and easy-to-use method
for employers to verify work authorization. Accordingly, the
1986 law instituted an interim verification system. This system
requires the presentation of one or two documents (depending on
whether the document is an identification document as well as a
document showing work authorization) from a list of 29. Most of
these are not resistant to tampering or counterfeiting.
Further, it is surprisingly easy to obtain genuine documents,
including a birth certificate. Thus, it was believed by
Congress and the President that the system would most likely
need to be significantly improved. In fact the law called for
studies of telephone verification systems and counterfeit-
resistant social security cards.
Unfortunately, the interim system is still in place today,
10 years later. This is true even though--as was feared--there
is widespread fraud in its use. While most employers try to
comply with the law, it is impossible for honest employers to
distinguish genuine documents from high-quality (but
inexpensive) counterfeit ones.
As a result, the employer sanctions law has not been as
effective in deterring illegal immigration as it could be--and
should be. That is why apprehensions have continued to be so
high.
The committee believes that an improved system to verify
eligibility to work in this country must be developed--in order
that the enforcement tool with the greatest potential to deter
illegal entry and visa abuse will actually have that effect.
Effective enforcement requires effective employer sanctions,
and effective employer sanctions requires an effective
verification system. It is just that simple.
Accordingly, the committee bill directs the President to
conduct, over a period of three to six years, local or regional
pilot projects (and one in the legislative branch) on improved
verification systems. The committee anticipates that the cost
to employers of participating in any pilot project in which
participation is mandatory would not be significantly greater
than the cost under current law.
The bill also directs the President to recommend a system
that should be implemented on a nationwide basis. The
recommended system could not be implemented until a statute or
joint resolution had been passed authorizing it. The bill
explicitly states that the system could not require a
``national I.D. card'' and could not be used except to verify
eligibility to work or to receive certain government benefits,
or to enforce criminal statues related to document fraud. The
bill also provides protections for the privacy and security of
any personal information obtained for or utilized by the
system. (See the section-by-section analysis for sec. 111
through 114.)
In addition, the committee bill proposes a number of
provisions to improve the effectiveness of the current
verification system. These include provisions to reduce the
list of documents that may be accepted by employers; to require
improvements in the birth certificate and driver's license; and
to modify the current law providing that under certain
circumstances an employer's request for more or different
documents than the law requires is an unlawful ``unfair
immigration-related employment practice'' (the committee bill
would require a purpose or intent to unlawfully discriminate).
(See the section-by-section analysis for sec. 116 through 118.)
Aliens' use of welfare
The committee believes that aliens in this country should
be self-sufficient. There is a controversy whether immigrants
as a whole--or illegal aliens as a whole--pay more in taxes
than they receive in welfare (noncash plus cash), public
education, and other government services. The committee
believes that at least with respect to immigrant households
(i.e., a household consisting of immigrant parents, plus their
U.S.-citizen children, who are in this country because of the
immigration of their parents), there is considerable evidence
that there is a net cost to taxpayers. See, e.g., George J.
Borjas, Immigration and Welfare, 1970-1990, p. 23 (Nat'l Bur.
Econ. Res. Working Paper No. 4872, Sept 1994). However, the
committee believes that the most relevant question is whether
any particular immigrant is a burden, not immigrants as a
whole.
An immigrant may be admitted to the United States only if
the immigrant provides adequate assurance to the consular
officer and immigration inspector that he or she is not
``likely at any time to become a public charge.'' Similar
provisions have been part of our law since the 19th century and
part of the law of some of the 13 colonies even before
Independence. In effect, immigrants make a promise to the
American people that they will not become a financial burden.
The committee believes that there is a compelling Federal
interest in enacting new rules on alien welfare eligibility and
on the financial liability of the U.S. sponsors of immigrants--
in order to increase the likelihood that aliens will be self-
sufficient, in accordance with the nation's longstanding
policy, and to reduce any additional incentive for illegal
immigration provided by easy availability of welfare and other
taxpayer-funded benefits.
The committee bill provides that if an alien, within 5
years of entry, does become a ``public charge''--which the bill
defines as someone receiving an aggregate of 12 months of
welfare--he or she is deportable. It is even more important in
this era that there be such a law, since the welfare state has
changed the pattern of immigration and emigration that existed
earlier in our history. Before the welfare state, if an
immigrant could not succeed in the U.S., he or she often
returned to ``the old country.'' This happens less often today,
because of the welfare ``safety net.''
The changes proposed by the bill clarify when the use of
welfare would lead to deportability. These changes are likely
to lead to less use of welfare by recent immigrants or more
deportations of immigrants who do become a burden on the
taxpayers.
One of the ways immigrants are permitted to show that they
are not likely to become a public charge is by providing an
affidavit of support by a sponsor, who is often the U.S.
relative petitioning for their entry under an immigrant
classification for family reunification. Under current law,
sponsors agree to provide support only for three years.
Furthermore, the agreement is not legally enforceable.
The committee believes that the sponsor affidavit should be
legally enforceable and should be in effect until the sponsored
alien (a) has worked for a reasonable period in this country,
paying taxes and making a positive economic contribution, or
(b) becomes a citizen, whichever occurs first. The committee
believes that a reasonable maximum period for the sponsor's
liability is 40 ``Social Security quarters'' (about 10 years),
the period it takes any citizen to qualify for benefits under
Social Security retirement and certain Medicare programs.
The committee believes that ``deeming'' of the sponsor's
income and assets to the sponsored alien should be required in
nearly all welfare programs and for as long as the sponsor is
legally liable for support, or 5 years (the period in which an
alien can be deported as a public charge), whichever is longer.
It is not unreasonable of the taxpayers of this country to
require recently arrived immigrants to depend on their sponsors
for at least the first 5 years, regardless of the specific
terms in the affidavit of support signed by their sponsors. It
was only on the basis of the assurance of the immigrant and the
sponsor that the immigrant would not at any time become a
public charge that the immigrant was allowed in this country.
It should be made clear to immigrants that the taxpayers of
this country expect them to be able to make it in this country
on their own and with the help of their sponsors.
At this point, there is a fundamental committee intent that
should be clearly expressed--an intent that should be taken
into account in the interpretation of every provision of this
bill. The committee intends that aliens within the jurisdiction
of this country be required to fully obey all State and Federal
laws--including the immigration laws.
Some Americans appear to be ambivalent about the
enforcement of the Immigration and Nationality Act. This
includes a number of judges, perhaps reflecting a tension they
feel between their duty to apply the law and their inclination
to be humane toward those seeking a better life in this
country, in accordance with our immigrant heritage. For
example, while the U.S. Supreme Court has recognized that the
making of immigration policy is reserved to the political
branches under our constitutional system and should be largely
immune from judicial control (Fiallo v. Bell, 430 U.S. 787,
792, 796 (1977)), and that relief from deportation may be left
to the unfettered discretion of the Attorney General (Jay v.
Boyd, 351 U.S. 345, 357-58 (1956)), the Court on other
occasions has characterized deportation as a grave penalty
(Bridges v. Wixon, 326 U.S. 135, 147 (1945)) and suggested that
statutory ambiguities should be resolved in favor of the alien
(INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987)).
If the United States is to have an immigration policy that
is both fair and effective, the law and the commitment of those
with the duty to apply or enforce it must be clear. There
should be no confusion about the intent of Congress that U.S.
immigration law be fully binding on all persons at or within
the borders of this country. This is a nation governed by law,
and the law includes the immigration statutes and the
regulations promulgated thereunder.
Aliens who violate U.S. immigration law should be removed
from this country as soon as possible. Exceptions should be
provided only in extraordinary cases specified in the statute
and approved by the Attorney General. Aliens who are required
by law or the judgment of our courts to leave the United States
are not thereby subjected to a penalty. The opportunity that
U.S. immigration law extends to aliens to enter and remain in
this county is a privilege, not an entitlement.
The committee also wishes to note once more the frequently
stated reality that the attitude of the American people toward
legal immigrants and the resources which they willingly devote
to immigrants is affected by the level of illegal immigration
that burdens the society. Aliens who enter or remain in the
United States in violation of our law are effectively taking
immigration opportunities that might otherwise be extended to
others, potential legal immigrants whose presence would be more
consistent with the judgment of the elected government of this
country about what is in the national interest. Those who are
reluctant to enforce the immigration laws should keep this
reality in mind.
III. History of Current Legislation
S. 269, the ``Immigrant Control and Financial
Responsibility Act of 1995,'' was introduced on January 24
(legislative day January 10), 1995, by Senator Robert J. Dole
on behalf of Senator Alan K. Simpson. This legislation was
referred to the Committee on the Judiciary, Subcommittee on
Immigration, which ordered it favorably reported with
amendments on June 14, 1995. The Committee on the Judiciary
ordered it favorably reported with amendments on March 21,
1996.
The legislation has its roots in legislation introduced in
the 103d Congress, S. 1884, the ``Comprehensive Immigration and
Asylum Reform Act of 1994,'' introduced by Senator Alan Simpson
on March 2, 1994. Other major immigration bills in the Senate
during the 103d Congress included S. 1333, introduced by
Senator Edward M. Kennedy on July 30, 1993 (on behalf of the
Clinton Administration) and S. 1571, introduced by Senator
Dianne Feinstein on October 20, 1993.
The legislation was also influenced by the recommendations
of the U.S. Commission on Immigration Reform, chaired by the
late Hon. Barbara Jordan. This commission, which was
established by Congress in 1990, issued a series of
recommendations in the area of illegal immigration in its
September 1994 report to Congress, ``U.S. Immigration Policy:
Restoring Credibility.''
IV. Section-by-Section Analysis
TITLE I--IMMIGRATION CONTROL
Subtitle A--Law Enforcement
Part 1--Additional Enforcement Personnel and Facilities
Sec. 101--Border patrol agents
Adds 700 Border Patrol Agents for fiscal year 1996, and
1,000 new Agents for each of the next four fiscal years (a
total increase of 90 percent above the current level).
Sec. 102--Investigators
Authorizes the addition of 300 full-time INS investigators
for each of the next three fiscal years (a total increase of
almost 100 percent), all of whom would be used to enforce laws
against alien smuggling and the unlawful employment of aliens.
Sec. 103--Land border inspectors
Directs the Attorney General and Secretary of the Treasury
to increase the number of inspectors to assure full staffing of
all land border crossing lanes during peak times.
Sec. 104--Investigators of visa overstayers
Authorizes 300 INS officers to investigate aliens who
entered legally on a temporary (visitor's) visa, but overstayed
their authorized period of stay and remain in the U.S.
illegally.
Sec. 105--Increased personnel levels for the Labor Department
Authorizes the addition of 350 Wage and Hour investigators
in each of the next two fiscal years to enforce labor standards
in areas of the U.S. with high concentrations of illegal
aliens. The Secretary of Labor shall give preference to
bilingual agents when making the hiring decisions.
Sec. 106--Increase in INS detention facilities
Requires the Attorney General to increase detention space
to at least 9,000 beds (an increase of 66 percent) by the end
of FY 1997.
Sec. 107--Hiring and training standards
Requires a report from the Attorney General on all
prescreening, hiring, and training standards used by the INS
when hiring the additional personnel authorized by this act.
Sec. 108--Construction of fencing and road improvements in the border
area near San Diego, California
Requires the Attorney General to construct a three-tier
fence along 14 miles of the southern border near San Diego in
order to deter illegal entry.
part 2--verification of eligibility to work and to receive public
assistance
Subpart A--Development of New Verification System
Sec. 111--Establishment of new system.
Requires the President to develop and recommend to Congress
a plan for a system to enable employers to verify that an
employee is authorized to work and welfare administrators to
verify that an applicant is authorized to receive welfare. The
recommendation must be submitted to Congress within 3 or 6
years (depending on the duration of the demonstration projects
that are conducted pursuant to sec. 112). Implementation of the
recommended system could occur only through subsequent
legislation by Congress.
The President must report to Congress on: (1) The proposed
system and any alternatives considered; (2) Whether the system
reduces the number of illegal immigrants in the workplace; (3)
Data on the costs (to the government and to employers), privacy
protections, and the accuracy rate of the system; and (4)
Whether the system causes new employment discrimination.
The recommended plan would have the following objectives:
(1) To reduce the employment of illegal immigrants; (2) To
assist employers in complying with the laws against knowingly
employing illegal aliens; (3) To prevent unlawful
discrimination and privacy violations; (4) To minimize the
burden on business; and (5) To ensure that illegal aliens do
not receive public assistance or certain other government
benefits.
The system would be required to reliably determine whether
the person with the identity claimed by an individual is
eligible to work and to apply for public assistance, and
whether such individual is an imposter, fraudulently claiming
another person's identity. The President may not test or
recommend a ``national I.D. card.'' Any documents which are
used in such a verification system must be resistant to
tampering and counterfeiting, and may not be used for any
purpose other than enforcing the immigration laws or laws
related to document fraud (or for their original purpose; e.g.,
as a license to drive a motor vehicle). The bill provides
extensive protections against and remedies for violations of
privacy.
Sec. 112--Verification system demonstration projects
Directs the President, through the Attorney General, to
conduct several local or regional pilot projects (including one
in the legislative branch of the Federal Government), during
the 3 years following enactment, to test the feasibility of
proposed verification systems, and requires regular
consultations with Congress. Additional or renewed projects are
possible, and a final evaluation and recommendation is required
after completion of the projects. The pilot projects would also
be subject to the rules applicable to the permanent system,
with the exception that the standards of accuracy are not
expected to be immediately met in such projects.
The committee intends that the projects be truly local or
regional. During consideration of the bill, some concern was
expressed that a broader pilot program, such as one covering
several high-immigration States, could be tantamount to a
national program. The committee believes that a pilot program
of such magnitude would violate the provisions of sec. 111
requiring that a statute or joint resolution approve a new
system before it could be implemented nationwide.
If the Attorney General determines that a pilot project is
sufficiently accurate, then employers who participate need not
also follow the verification procedures of current law,
including the completion of the ``I-9'' form.
Sec. 113--Comptroller General monitoring and reports
Requires the General Accounting Office to monitor the pilot
programs required under sec. 112 and to provide Congress with
an evaluation of the final verification system proposed by the
President.
Sec. 114--General nonpreemption of existing rights and remedies
Provides that nothing in sections 111-113 may be construed
to impair any rights or remedies available under Federal, State
or local law after enactment, except to the extent inconsistent
with a provision in one or more of such sections.
Sec. 115--Definitions
Defines ``Administration,'' ``Employment Authorized
Alien,'' and ``Service.''
Subpart B--Strengthening Existing Verification Procedures
Sec. 116--Changes in list of acceptable employment-verification
documents
Reduces the number of acceptable employment-verification
documents to the U.S. passport, resident alien card (old),
alien registration card (new), social security card, and other
documents designated by the Attorney General. Authorizes the
Attorney General to require social security account numbers on
the verification form.
Sec. 117--Treatment of certain documentary practices as unfair
immigration-related employment practices
Provides that a request for documents beyond those required
for employment verification shall be treated as an unfair
immigration-related employment practice only if made with
discriminatory purpose or intent.
Sec. 118--Improvements in identification-related documents
Establishes Federal standards for birth certificates and
State-issued drivers licenses (developed in consultation with
the States). The section also establishes grants for States to
facilitate the matching of birth and death records (to reduce
the likelihood that copies of the birth certificate of a
deceased person will be provided to other individuals).
Sec. 119--Enhanced civil penalties if labor standards violations are
present
Provides that civil penalties for knowing employment of
unauthorized aliens may be doubled for employers who have
willfully or repeatedly violated Federal labor standards.
Sec. 120--Increased numbers of U.S. Attorneys to prosecute cases of
unlawful employment of aliens or document fraud
Authorizes the Attorney General to hire additional
Assistant U.S. Attorneys to prosecute immigration-related
cases.
Sec. 120A--Subpoena authority for cases of unlawful employment of
aliens or document fraud
Grants subpoena power to designated INS officers and to the
Secretary of Labor to facilitate the investigation of document
fraud and the unauthorized employment of aliens.
Sec. 120B--Task Force to improve public education regarding unlawful
employment of aliens and unfair immigration-related employment
practices
Establishes a Task Force within the Department of Justice
to educate and assist employers in complying with the laws
against the knowing employment of aliens who are not authorized
to work and the laws against unfair immigration-related
employment practices.
Sec. 120C--Nationwide fingerprinting of illegal aliens
Authorizes additional appropriations so that current
programs to fingerprint illegal aliens upon apprehension are
expanded nationwide.
Sec. 120D--Application of verification procedures to State agency
referrals of employment
Requires State employment agencies to comply with the same
requirements, and be subject to the same penalties, under the
employer sanctions law as private referral agencies.
Sec. 120E--Retention of verification form
Eliminates employer liability for retaining the I-9 form in
cases of disaster or other ``Acts of God'' beyond the control
of the employer.
part 3--alien smuggling; document fraud
Sec. 121--Wiretap authority
Provides wiretap authority for investigations of alien
smuggling and document fraud.
Sec. 122--Additional coverage in RICO for offenses relating to alien
smuggling and document fraud
Adds coverage of certain alien smuggling and document fraud
offenses to the RICO (Racketeer Influenced and Corrupt
Organizations) statute.
Sec. 123--Increased criminal penalties
Increases criminal penalties for alien smuggling and
harboring, and provides guidance to the U.S. Sentencing
Commission on possible adjustments to the alien smuggling
penalties (such as the smuggling of aliens who intend to commit
crimes).
Sec. 124--Admissibility of videotaped witness testimony
Authorizes admission of videotaped witness testimony in
smuggling prosecutions.
Sec. 125--Expanded forfeiture for alien smuggling or document fraud
Authorizes asset forfeiture for certain crimes related to
alien smuggling and document fraud.
Sec. 126--Criminal forfeiture
Extends criminal forfeiture to cover assets which are
derived from or facilitate alien smuggling and document fraud.
Sec. 127--Increased criminal penalties for fraudulent use of
government-issued documents
Increases from $250,000 to $500,000 the maximum criminal
fine, and from 5 years to 15 years the maximum sentence, for
fraudulent or unauthorized use of official government stamp or
seal (with enhanced penalties when the fraudulent documents are
used to facilitate drug trafficking or international
terrorism). This section also provides guidance to the U.S.
Sentencing Commission on possible adjustments to the document
fraud penalties.
Sec. 128--Criminal penalty for false statement in a document required
under the immigration laws or knowingly presenting a document
which fails to contain a reasonable basis in law or fact
Establishes criminal penalty of up to 5 years and/or
maximum fine of $250,000 for making a false statement in a
document required by the immigration laws, or for knowingly
presenting a document which lacks a reasonable basis in fact.
Sec. 129--New criminal penalties for failure to disclose role as
preparer of false application for asylum or for preparing
certain post-conviction applications
Imposes a new criminal penalty for failing to disclose role
as the preparer, for a fee, of a fraudulent application for
asylum, and--after such a conviction--for preparing any
immigration application, even if not for a fee and not for
asylum. The offender is forced ``out of the business'' of
preparing immigration applications.
Sec. 130--New document fraud offenses; new civil penalties for document
fraud
Imposes new civil penalties for using fraudulent documents
to obtain immigration benefits, and adds to the statute the
presentation of false documents to a common carrier for the
purpose of coming to the U.S., and the failure to present
documents to an immigration officer upon arrival. Enhances the
penalties for document fraud where employers have wilfully or
repeatedly violated labor standards. Allows the Attorney
General to waive penalties imposed for aliens ultimately
granted asylum, or withholding of deportation, in the U.S.
Sec. 131--New exclusion for document fraud or for failure to present
documents
Adds new ground of exclusion: failure to present to the
immigration inspector at a port of entry the documents that the
alien used to board a common carrier to come to the United
States, or presenting any document that the inspector
determines is forged, counterfeit, altered, falsely made,
inapplicable to that alien, or contains a material
misrepresentation.
Sec. 132--Limitation on withholding of deportation and other benefits
for aliens excludable for document fraud or failing to present
documents, or excludable aliens apprehended at sea
Provides that aliens excludable because of document fraud,
and excludable aliens apprehended at sea, may not qualify for
``withholding of deportation,'' unless found to have a
``credible fear of persecution.''
Sec. 133--Penalties for involuntary servitude
Increases the maximum penalty for peonage, involuntary
servitude, and slave trade offenses to 10 years. Directs the
U.S. Sentencing Commission to review the existing guidelines
for slavery and peonage offenses and ensure that they are
comparable to the penalties for alien smuggling and kidnapping
and that they adequately reflect the heinous nature of such
offenses. Also directs the Sentencing Commission to consider
the appropriate enhancements for these offenses.
Sec. 134--Exclusion relating to material support to terrorists
Expands definition of ``engage in terrorist activity,'' for
purposes of the terrorism ground of exclusion, to include
providing false documentation.
part 4--exclusion and deportation
Sec. 141--Special exclusion procedure
Establishes special exclusion proceeding (with limited
administrative and judicial review) that may be used (1) for
aliens who entered without inspection within the past 2 years;
present false documents, or fail to present documents, at a
port of entry; are brought ashore in the U.S. from an
intercepted vessel and are otherwise excludable; and (2) in an
``extraordinary migration situation''. Exempts from special
exclusion any alien who is eligible to seek and does seek
asylum, and is determined to have a ``credible fear of
persecution.'' Permits aliens who enter from Canada or Mexico
to be returned to those countries pending their exclusion
hearing.
Sec. 142--Streamlining judicial review of orders of exclusion or
deportation
Provides for the clarification and streamlining of judicial
review of deportation and exclusion orders. Prohibits judicial
review of the Attorney General's judgment regarding certain
forms of discretionary relief from exclusion or deportation,
voluntary departure, or adjustment of status. Also eliminates
review of final orders of exclusion or deportation for certain
criminal aliens (those described in the definition of
``specially deportable alien'' in bill sec. 164). Limits review
of special exclusion orders and cases involving document fraud,
and narrows review in asylum cases.
Sec. 143--Civil penalties and visa ineligibility, for failure to depart
Makes aliens subject to a final exclusion or deportation
order liable for additional penalties of $500 per day for
willful failure or refusal to depart the U.S. Provides that any
lawfully admitted nonimmigrant who remains 60 days beyond the
authorized period of stay shall be ineligible for any
additional nonimmigrant or immigrant visa for 3 years (except
an immigrant visa for a spouse of a citizen or permanent
resident). The Attorney General may waive this 3-year exclusion
for aliens who demonstrate good cause for failure to leave.
Sec. 144--Conduct of proceedings by electronic means
Authorizes the Attorney General to conduct deportation
proceedings by electronic or telephonic means, or, with the
consent of the parties, in the absence of the alien.
Sec. 145--Subpoena authority
Provides immigration judges with subpoena authority for
exclusion and deportation hearings.
Sec. 146--Language of deportation notice; right to counsel
Eliminates the requirement that aliens be notified of
deportation proceedings in both English and Spanish. Provides
that deportation proceedings may begin within three days after
a deportation notice has been provided to an alien held in
custody, whether or not the alien has secured counsel during
that time. Clarifies that privilege of counsel is conditioned
upon no expense to the government and no unreasonable delay to
the proceedings.
Sec. 147--Addition of nonimmigrant visas to types of visas denied for
countries refusing to accept deported aliens
Provides an additional incentive for countries to accept
deported aliens who are their nationals. Current law authorizes
the withholding of immigrant visas to nationals of such
countries. This section adds nonimmigrant visas and clarifies
that such withholding is mandatory except if a treaty otherwise
requires or in the national interest.
Sec. 148--Authorization of special fund for costs of deportation
Authorizes $10 million to facilitate deportation and
detention.
Sec. 149--Pilot program to increase efficiency in removal of detained
aliens
Authorizes appropriations for pilot programs to increase
the efficiency of deportation and exclusion proceedings by
providing pro bono legal representation.
Sec. 150--Limitations on relief from exclusion and deportation
Reduces an alien's incentive to delay an exclusion or
deportation proceeding by providing that the 7-year period of
U.S. residence required to qualify for section 212(c) relief or
section 244 suspension of deportation (renamed ``cancellation
of deportation'') no longer includes time after proceedings
have begun. Denies relief from deportation or exclusion to
lawful permanent residents who receive sentences for one or
more felonies totaling more than 5 years. Denies cancellation
of deportation to aggravated felons who are not permanent
residents, regardless of sentence. Provides standards for
cancellation of deportation for permanent residents.
Authorizes, but does not require, the Attorney General to
adjust to legal status any alien who receives cancellation of
deportation. Gives the Attorney General greater control of
``voluntary departure'' (which allows deportable aliens to
leave the U.S. without formal deportation, and therefore
without being subject to the temporary ban on reentry that
follows deportation). Prohibits judicial review of a denial of
a request for voluntary departure.
Sec. 151--Definition of stowaway; excludability of stowaway; carrier
liability for costs of detention
Adds formal definition of ``stowaway,'' and provides that a
stowaway who is inspected upon arrival in the U.S. is, by
definition, an excluded alien and must be immediately deported
unless applying for asylum. Stowaways who have applied for
asylum may not be removed until the asylum application has been
finally adjudicated. Restores carrier liability for detaining
stowaways. Increases fine for failing to remove stowaways from
U.S. from $3,000 to $5,000.
Sec. 152--Pilot program on interior repatriation and other methods to
deter multiple unlawful entries
Requires the Attorney General, in consultation with
Secretary of State, to establish a 2-year pilot program to
deter multiple illegal entrants. Provides that such pilot
programs may include repatriation to the interior (rather than
the border) of the country of nationality, repatriation to a
third country, or other disincentives.
Sec. 153--Pilot program on use of closed military bases for the
detention of excludable or deportable aliens
Requires the Attorney General and Secretary of Defense to
establish a 2-year pilot program to study the feasibility of
using closed military bases as detention centers for aliens
apprehended by INS.
Sec. 154--Requirement for immunization against vaccine-preventable
diseases for aliens seeking permanent residency
Requires aliens seeking entry as lawful permanent residents
to show they have been immunized against vaccine-preventable
diseases.
Sec. 155--Certification requirements for foreign health-care workers
Requires aliens seeking entry in order to perform health-
care work, other than physicians, to be certified by an
independent agency concerning their education, training,
experience, foreign licenses, English-language ability, and
(under certain circumstances) performance on a test. The
committee intends that independent credentialing organizations
other than the Commission on Graduates of Foreign Nursing
Schools shall be approved if they demonstrate to the Attorney
General's satisfaction the ability to competently conduct the
required certification functions.
Sec. 156--Increased bar to reentry for aliens previously removed
Increases exclusion period to 5 years for aliens who have
previously been deported or removed. The bar is increased to 20
years if the alien has been deported or removed two or more
times.
Sec. 157--Elimination of consulate shopping for visa overstays
Provides that aliens who overstay their nonimmigrant visas
must return to their country of nationality for a subsequent
nonimmigrant visa unless the Secretary of State determines that
extraordinary circumstances exist.
Sec. 158--Incitement as a basis for exclusion from the United States
Makes excludable those aliens who have incited terrorism,
targeted racial vilification, advocated the overthrow of the
U.S. government, or serious bodily harm to any U.S. citizen or
government official.
Sec. 159--Conforming amendment to withholding of deportation
Makes clear that the Attorney General has discretion to
refrain from deporting an individual if such action would be
contrary to U.S. obligations under the refugee treaty (the 1967
United Nations Protocol Relating to the Status of Refugees).
Part 5--Criminal Aliens
Sec. 161--Amended definition of aggravated felony
Lowers fine and imprisonment thresholds in the definition
(from 5 years to 1 year, from $200,000 or $100,000 to $10,000),
thereby broadening the coverage of money laundering, illegal
transactions in property, theft, violence, document fraud, tax
evasion, fraud and deceit, and racketeering. Adds new offenses
relating to gambling, bribery, perjury, revealing the identity
of undercover agents, and transporting prostitutes. Deletes the
requirement that alien smuggling be for commercial advantage,
but excepts a first offense involving solely the alien's
spouse, child or parent. Provides that the amended definition
of ``aggravated felony'' applies to offenses that occurred
before, on, or after the date of enactment, except with respect
to the criminal provisions of INA section 242(f)(2) (added by
bill sec. 164). Certain aggravated felons are made ineligible
for withholding of deportation relief (based on fear of
persecution), subject to the Attorney General's discretion
referred to sec. 159.
Sec. 162--Ineligibility of aggravated felons for adjustment of status
Makes aliens convicted of aggravated felonies ineligible
for adjustment of status after cancellation of deportation.
Because of the expanded definition of ``aggravated felony''
provided by sec. 161 of the bill, aliens who have been
convicted of most felonies, if sentenced to at least 1 year in
prison, will be ineligible for this relief.
Sec. 163--Expeditious deportation creates no enforceable right for
aggravated felons
Ensures that the expedited deportation procedures for
aggravated felons available under current law does not create
any enforceable right against the U.S., which could lead to
additional administrative or judicial review, delaying
deportation.
Sec. 164--Custody of aliens convicted of aggravated felonies
Permits the release of an excludable or deportable alien
convicted of an aggravated felony if the release is necessary
to protect a witness or a person cooperating with a criminal
investigation, or an immediate family member of such a person,
and such release would not threaten the community.
Defines ``specially deportable criminal aliens'' as any
alien who has committed an aggravated felony or at least two
crimes of ``moral turpitude'' which have each resulted in
imprisonment for at least one year. Provides that the Attorney
General shall take such an alien into custody and remove the
alien within 30 days of a final order of deportation or, if
later, the alien's release from incarceration.
Sec. 165--Judicial deportation
Authorizes Federal district judges to order the deportation
of a criminal alien at the time of sentencing if the alien is
deportable on any ground and to order deportation as a
condition of a plea agreement or of probation or supervised
release. Authorizes State courts to make a find that an alien
is deportable as a ``specially deportable criminal alien.''
Sec. 166--Stipulated exclusion or deportation
Permits special inquiry officers (immigration judges) to
enter an order of exclusion or deportation stipulated to by the
Service and the alien. Such order may be entered without a
personal appearance by the alien.
Sec. 167--Deportation as a condition of probation
Permits a sentencing Federal court to order deportation
pursuant to a stipulation by the alien and the U.S. or as a
condition of probation.
Sec. 168--Annual report on criminal aliens
Directs the Attorney General to submit an annual report to
Congress on criminal aliens and their removal.
Sec. 169--Undercover investigation authority
Authorizes INS to conduct various property and financial
transactions as part of undercover investigations.
Sec. 170--Prisoner transfer treaties
Authorizes bilateral agreements for the transfer of
deportable alien convicts to serve their sentences in their
home countries. Expresses the Sense of Congress that priority
to be given to countries with high numbers of deportable alien
prisoners in the U.S. and that the prisoner's consent should
not be required before transfer under any future treaty, and
that the Federal Government and the States should be authorized
to keep the original prison sentence in force so that
transferred persons who return to the U.S. prior to the
completion of their original sentence can be returned to
custody for the balance of their sentence.
Sec. 170A--Prisoner transfer treaties study
Directs the Secretary of State and the Attorney General to
submit a report on the effectiveness of current prisoner
transfer treaties and to recommend how to improve their
effectiveness.
Sec. 170B--Using alien for immoral purposes, filing requirement
Requires those who control or harbor alien prostitutes to
register with the INS earlier than required by current law, and
expands the law to cover all countries.
Sec. 170C--Technical corrections to Violent Crime Control Act and
Technical Corrections Act
Redesignates the second section 245(i) in the Immigration
and Nationality Act as section 245(j). Authorizes the Attorney
General to initiate deportation proceedings after a request for
a judicial order of deportation has been denied. The denial no
longer would have to be without a decision on the merits.
Sec. 170D--Demonstration project for identification of illegal aliens
in incarceration facility of Anaheim, California
Authorizes the Attorney General to conduct a pilot project
using INS personnel to demonstrate the feasibility of
identifying incarcerated illegal aliens prior to their
arraignment on criminal charges.
Part 6--Miscellaneous
Sec. 171--Immigration emergency provisions
Delegates powers to the Attorney General to control a mass
influx of illegal aliens, should such an emergency develop.
Authorizes distributions from the Immigration Emergency Fund,
without the explicit declaration of an immigration emergency by
the President, and use of the fund for costs associated with
the repatriation of illegal aliens. Upon a declaration by the
Attorney General that the mass influx of individuals to the
United States is underway or imminent, provisions permit
vessels to be seized at sea and allow the Attorney General to
authorize any State or local law enforcement officer to perform
law enforcement functions ordinarily reserved to Federal
authorities.
Sec. 172--Authority to determine visa processing procedures
Clarifies that the nondiscrimination language of INA
section 202(a)(1) does not limit the Secretary of State's
authority to determine where and how immigrant visa
applications should be processed.
Sec. 173--Joint study of automated data collection
Requires the Attorney General, with other Federal agencies
and representatives of the air transport industry, to report
within 9 months on a plan for automated data collection at
ports of entry.
Sec. 174--Automated entry-exit control system
Requires the Attorney General, within 2 years of enactment,
to develop an automated system that will permit the computer
identification of nonimmigrants lawfully admitted to the United
States on temporary (visitor's) visas who have overstayed their
authorized period of stay.
Sec. 175--Use of legalization and special agricultural worker
information
Requires the Attorney General to release information
provided to the INS by an alien in connection with an
application for legalization or the special agricultural work
program in order to assist law enforcement authorities with a
criminal investigation or to assist in the identification of a
deceased person.
Sec. 176--Rescission of lawful permanent resident status
Clarifies that the Attorney General need not undertake
separate proceedings to rescind an alien's legal status before
commencing deportation proceedings involving that alien. An
order of deportation shall be sufficient to rescind such
status.
Sec. 177--Communication between Federal, State, and local government
agencies, and the Immigration and Naturalization Service
Prohibits any restriction on the exchange of information
between the Immigration and Naturalization Service and any
Federal, State, or local agency regarding a person's
immigration status. Effective immigration law enforcement
requires a cooperative effort between all levels of government.
The acquisition, maintenance, and exchange of immigration-
related information by State and local agencies is consistent
with, and potentially of considerable assistance to, the
Federal regulation of immigration and the achieving of the
purposes and objectives of the Immigration and Nationality Act.
Sec. 178--Authority to use volunteers
Authorizes the Attorney General to use volunteers to assist
in the administration of naturalization programs, port of entry
adjudications, and criminal alien removal, but not to
administer examinations or to adjudicate.
Sec. 179--Authority to acquire Federal equipment for border
Authorizes the Attorney General to acquire U.S. Government
surplus equipment (including aircraft, vehicles, and
surveillance equipment) as required to improve the detection,
interdiction, and reduction of illegal immigration (including
drug trafficking) into the United States.
Sec. 180--Limitation on legalization litigation
Provides that no court shall have jurisdiction to hear any
suit arising under the legalization provisions of the
Immigration Reform and Control Act of 1986, except by a person
who in fact submitted an application and fee before the
statutory deadline, or attempted to do so but had the
application and fee returned by an INS officer.
Sec. 181--Limitation on adjustment of status
Prevents the adjustment to legal status by any alien who
seeks employment-based adjustment but is not currently in
lawful nonimmigrant status, or by any alien who has been
employed unlawfully within the U.S. at any time or otherwise
violated the terms of a nonimmigrant visa.
Sec. 182--Report on detention space
Requires the Attorney General to submit a report to
Congress within 1 year which details the amount of detention
space that would be necessary under various detention policies,
and the number of excludable or deportable aliens who have been
released into U.S. communities within each of the 3 prior years
because of a lack of detention facilities.
Sec. 183--Compensation of special inquiry officers
Increases the compensation of special inquiry officers
(referred to in this section as ``immigration judges'').
Sec. 184--Acceptance of State services to carry out immigration
enforcement
Authorizes the Attorney General to enter into written
agreements with a State, or any political subdivision of a
State, to permit specially trained State officers to arrest and
detain aliens.
Sec. 185--Alien witness cooperation
Authorizes the provision of 250 nonimmigrant visas per year
to aliens assisting in the investigation and prosecution of
criminal enterprises and terrorist organizations. Current law
permits issuance of 125 such visas per year.
Subtitle B--Other Control Measures
Part 1--Parole Authority
Sec. 191--Useable only on a case-by-case basis for humanitarian reasons
or significant public benefit
Tightens The Attorney General's parole authority by (a)
changing the criterion from ``emergent reasons'' and ``reasons
deemed strictly in the public interest'' to ``urgent
humanitarian reasons or significant public benefit,'' and (b)
requiring case-by-case determination.
Sec. 192--Inclusion in world-wide level of family-sponsored immigrants
Provides that the number of parolees who remain in the
country for more than a year must be subtracted from the world-
wide level of immigrants for the subsequent year.
Part 2--Asylum
Sec. 193--Limitations on asylum applications by aliens using documents
fraudulently or by excludable aliens apprehended at sea; use of
special exclusions procedures
Bars an alien seeking entry to the U.S. with false, stolen
or no identification documents from applying for asylum, unless
the alien is found to have a ``credible fear of persecution.''
Aliens requesting asylum will be examined by specially trained
asylum officers to determine whether the ``credible fear''
standard is met. Permits supervisory, but not judicial review.
Requires the Attorney General to provide information regarding
procedures for requesting asylum to potentially eligible
persons.
Sec. 194--Time limitation on asylum claims
Provides that an application for asylum which is filed for
the first time after the alien has been given an ``Order to
Show Cause,'' which commences an exclusion or deportation
proceeding, shall not be considered if the proceeding was
commenced more than one year after the alien's entry into the
United States. Provides an exception if the alien shows good
cause for not having filed within a year after entry. ``Good
cause'' could include, but is not necessarily limited to,
circumstances that changed after the applicant entered the U.S.
and that are relevant to the applicant's eligibility for
asylum; physical or mental disability; threats of retribution
against the applicant's relatives abroad; or other
circumstances that could reasonably prevent a deserving asylum
seeker from applying within the required period, as determined
by the Attorney General.
Sec. 195--Limitation on work authorization for asylum applicants
Allows the Attorney General to deny, suspend, or limit work
authorization for an asylum applicant.
Sec. 196--Increased resources for reducing asylum application backlogs
Authorizes the Attorney General, for 2 years after
enactment, to lease property and employ Federal retirees to
reduce the current asylum backlog and process new asylum
applications.
Part 3--Cuban Adjustment Act
Sec. 197--Repeal and exception
Repeals the act, but provides that the act's provisions
will continue to apply on a case-by-case basis to aliens
paroled into the country pursuant to the U.S.-Cuba Migration
Agreement of 1995. Cubans attaining lawful permanent resident
status in this way will be considered family-sponsored
immigrants for purposes of annual numerical limits on
immigration.
Subtitle C--Effective Dates
Sec. 198--Effective dates
Provides that amendments made by this title shall take
effect on the date of enactment, unless otherwise specified.
Permits the changes relating to special exclusion, exclusion
for document fraud, limitation on withholding of deportation
for aliens excludable for document fraud, and limitation on
work authority for asylum applicants may be implemented through
interim final regulations at any time after enactment of this
act (exempts these provisions from the requirement of first
issuing a ``proposed rule'' for public comment).
TITLE II--FINANCIAL RESPONSIBILITY
Subtitle A--Receipt of Certain Government Benefits
Sec. 201--Ineligibility of excludable, deportable, and nonimmigrant
aliens
Prohibits receipt of any Federal, State or local government
benefit by an ``ineligible alien,'' which is defined as any
alien who is not (1) a lawful permanent resident, (2) a
refugee, (3) an asylee, or (4) an alien who has been in the
U.S. in parole status for at least one year. Ineligible aliens
may receive emergency medical services, prenatal and postpartum
pregnancy services under Title XIX of the Social Security Act,
short-term emergency disaster relief, benefits under the
National School Lunch Act, the Child Nutrition Act, and public
health assistance for immunizations and (if approved by the
Secretary of HHS) testing and treatment for communicable
diseases.
State or local governments may not treat an ineligible
alien as a resident, if such action would treat the alien more
favorably than a non-resident U.S. citizen. Only citizens and
work-authorized aliens may receive unemployment benefits or
Social Security benefits--and benefits may be based only on
periods of authorized work. The Secretary of Housing and Urban
Development must report on the implementation of current law
barring the provision of housing assistance to ineligible
aliens. Nonprofit charitable organizations are exempt from the
requirements under this title.
Sec. 202--Definition of ``public charge'' for purposes of deportation
Clarifies that aliens who receive welfare benefits for more
than 12 months during the first 5 years after entry (or
adjustment to legal permanent resident status, if the immigrant
entered first as a nonimmigrant) are deportable. Exceptions are
provided for noncitizens who entered prior to enactment,
refugees, asylees, and immigrants who, after entry, suffer (1)
a physical disability so severe the alien cannot take any job,
or (2) a mental disability which requires continuous
hospitalization.
Sec. 203--Requirements for sponsor's affidavit of support
Requires that future affidavits of support (in which a
sponsor promises to support the immigrant) must be legally
enforceable against the sponsor by the sponsored immigrant, and
the Federal, State or local governments. An affidavit will be
legally enforceable until the immigrant has worked 40
``qualifying quarters'' in the United States or until the
immigrant naturalizes (whichever is earlier). A qualifying
quarter is a 3-month period, during which the immigrant (1)
earned enough for the period to count as a quarter for Social
Security coverage; (2) did not use welfare; and (3) which
occurs in a year in which the immigrant paid Federal income
taxes.
A sponsor must be a citizen or lawful permanent resident
domiciled in the U.S. or its possessions; 18 or older; who
demonstrates the ability to support the sponsor's family and
the immigrant by showing an annual income of at least 125
percent of the poverty line (except that for active-duty
members of the U.S. armed forces, the required minimum income
is 100 percent of the poverty line).
Sec. 204--Attribution of sponsor's income and resources to family-
sponsored immigrants
Provides that, when determining a sponsored immigrant's
eligibility for any needs-based Federal program, the
applicant's income shall be deemed to include the income of the
sponsor and sponsor's spouse for the ``deeming period.'' The
deeming period is 5 years after entry (for those currently in
the U.S.) or the length of time that the affidavit is legally
enforceable (see sec. 203). Students who have been approved for
Pell grants or other higher education assistance for the
academic year in which this act is passed are exempted from
deeming for such educational assistance for the remainder of
their course of study. States have the option to deem sponsor
income when determining eligibility for State or local
government-assistance programs.
Sec. 205--Verification of student eligibility for postsecondary Federal
student financial assistance
Provides that within one year of enactment, the Secretary
of Education must submit a report to Congress which details the
operation of the Department's ``computer matching program'' to
ensure ineligible aliens do not receive higher educational
assistance by providing fraudulent Social Security numbers on
their financial aid applications.
Sec. 206--Authority to States and localities to limit assistance to
aliens and to distinguish among classes of aliens in providing
general public assistance
Authorizes States to limit the eligibility of any alien for
needs-based assistance, provided the State restrictions based
upon alienage are not more restrictive than those imposed by
the Federal government.
Sec. 207. Earned income tax credit denied to individuals not authorized
to be employed in the United States
Denies earned income tax credit to anyone who has not been
a citizen or lawful permanent resident for the entire tax year.
Sec. 208--Increased maximum criminal penalties for forging or
counterfeiting seal of a Federal department or agency to
facilitate benefit fraud by an unlawful alien
Increases from $250,000 to $500,000 the maximum criminal
fine, and increases from 5 years to 15 years the maximum
sentence, that may be imposed for the unauthorized or
fraudulent use, or the possession or transfer of a facsimile or
counterfeit, of an official government stamp, seal or other
similar instrument of authorization when the crime is intended
to facilitate (or has facilitated) an unlawful alien's
fraudulent application for (or receipt of) a Federal benefit.
Sec. 209--State option under the Medicaid program to place anti-fraud
investigators in hospitals
Permits reimbursement of expenses incurred by a State when
hospital staff is supplemented with State or County fraud
investigators to facilitate the investigation of potentially
fraudulent Medicaid claims.
Sec. 210--Computation of targeted assistance
Provides that targeted assistance for refugees (except for
the Targeted Assistance Ten Percent Discretionary Program) is
to be allocated on the basis of the number of refugees in the
qualifying counties who arrived within the previous five years.
This codifies the current allocation formula established by the
Office of Refugee Resettlement and is consistent with
Congress's original intent.
Subtitle B--Miscellaneous Provisions
Sec. 211--Reimbursement of States and localities for emergency medical
assistance for certain illegal aliens
Authorizes Federal reimbursement (subject to
appropriations) for emergency ambulance services provided to
illegal aliens who are apprehended while crossing the border.
Sec. 212--Treatment of expenses subject to emergency medical services
exception
Permits full Federal reimbursement (subject to advance
appropriations) of the cost of emergency medical services
provided to illegal aliens. In order to qualify for
reimbursement, the hospital must follow guidelines established
by the Secretary of Health and Human Services to ensure the
individual served is an illegal alien.
Sec. 213--Pilot programs
Authorizes two additional ``commuter lane'' pilot projects
(one each on the northern and southern borders), and pilot
projects on expanded hours for ports of entry on the northern
border, and on the use of ports of entry after hours through
use of card-reading machines or other appropriate technology.
Subtitle C--Effective Dates
Sec. 221--Effective dates
This title shall be effective upon enactment of this act,
except where otherwise * * *.
* * * * * * *
V. Committee Action
The committee met on 6 separate days (February 29, March 6,
13, 14, 20, and 21, 1996) to mark up the subject legislation,
and on March 21, 1996, with a quorum present, by a vote of yeas
to nays, the committee ordered an original bill containing
provisions from S. 269, ``The Immigration Control and
Responsibility Act of 1995'' offered by Senator Simpson, to be
favorably reported, as amended. A number of amendments were
agreed to by unanimous consent, voice vote, and rollcall votes.
Other amendments were rejected. Following is a list of the
amendments considered by the committee:
recorded votes
1. The Simpson amendment to strike sections 127 (civil
penalties for bringing inadmissible aliens from contiguous
territories) and 177 (transportation line responsibility for
aliens transmitting without visa); to require a study of
automated data collection systems; and to revise section 151,
the definition of ``stowaway'' was agreed to by a roll call
vote of 11 yeas to 6 nays.
YEAS NAYS
Hatch Grassley
Thurmond (by proxy) Thompson
Simpson Simon
Specter Kohl
Brown Feinstein
Kyl Feingold
DeWine
Abraham
Kennedy
Leahy
Heflin
2. The first part of an Abraham amendment which was divided
into two parts by motion, to strike sections 111-113 and
section 116 failed by a roll call vote of 9 yeas to 9 nays. The
second part, to insert ``Penalties against visa-overstayers and
authorization for 300 visa-overstayer investigators was agreed
to by voice vote.
YEAS NAYS
Hatch Simpson
Thurmond (by proxy) Grassley
Specter (by proxy) Brown
Thompson Kyl
DeWine Biden (by proxy)
Abraham Kennedy
Leahy (by proxy) Simon
Heflin (by proxy) Kohl (by proxy)
Feingold Feinstein
3. The Kennedy Amendment to strike sections 111-113 and
insert the following, ``Part 2--System to Verify Eligibility to
Work and to Receive Public Assistance'' was agreed to by a
rollcall vote of 11 yeas to 5 nays.
YEAS NAYS
Hatch Specter (by proxy)
Thurmond (by proxy) Thompson
Simpson DeWine
Grassley Abraham
Brown Feingold
Kyl
Biden (by proxy)
Kennedy
Simon
Kohl (by proxy)
Feinstein
4. The Hatch amendment to delete provisions increasing
civil and criminal penalties for violations of the employer
sanctions provisions was agreed to by a vote of 10 yeas to 8
nays.
YEAS NAYS
Hatch Simpson
Thurmond Grassley
Specter (by proxy) Biden (by proxy)
Brown (by proxy) Kennedy
Thompson (by proxy) Leahy
Kyl Simon
DeWine Kohl
Abraham Feinstein
Heflin (by proxy)
Feingold
5. Kennedy's amendment to strike Section 115, Intentional
Discrimination was defeated by a roll call vote of 7 yeas to 9
nays.
YEAS NAYS
Thompson Hatch
Biden Thurmond
Kennedy Simpson
Leahy Grassley (by proxy)
Simon Brown
Kohl (by proxy) Kyl
Feingold DeWine
Abraham
Feinstein
6. Simon's amendment to strike Section Criminalizing Voting
by Legal Aliens was passed by a vote of 9 yeas to 7 nays.
YEAS NAYS
Thompson Hatch
DeWine (by proxy) Thurmond
Abraham Simpson
Biden Grassley (by proxy)
Kennedy Brown (by proxy)
Leahy (by proxy) Kyl
Simon Feinstein
Kohl
Feingold
7. Simon's amendment to strike Death Penalty Provisions was
defeated by a roll call vote of 5 yeas to 11 nays.
YEAS NAYS
Kennedy Hatch
Leahy Thurmond
Simon Simpson
Kohl Grassley
Feingold Brown
Thompson
Kyl
DeWine
Abraham
Biden
Feinstein
8. Abraham's amendment to define serious crimes committed
by aliens as crimes for which the sentence of imprisonment
imposed is at least one year for purposes of exclusion or
deportation by a vote of 12 yeas to 5 nays.
YEAS NAYS
Hatch Biden (by proxy)
Thurmond (by proxy) Kennedy
Simpson Leahy (by proxy)
Grassley (by proxy) Simon (by proxy)
Brown Feingold
Thompson
Kyl
DeWine
Abraham
Heflin (by proxy)
Kohl
Feinstein
9. Abraham's amendment to eliminate additional judicial
review of orders of exclusion or deportation for aliens who
have been convicted of felonies by a vote of 12 yeas to 6 nays.
YEAS NAYS
Hatch Specter (by proxy)
Thurmond Biden (by proxy)
Simpson Kennedy
Grassley Leahy
Brown Simon
Thompson Feingold
Kyl
DeWine
Abraham
Heflin (by proxy)
Kohl
Feinstein
10. Abraham's amendment to prevent criminal aliens from
being released from custody prior to deportation by a vote of
13 yeas to 4 nays.
YEAS NAYS
Hatch Kennedy
Thurmond (by proxy) Leahy
Simpson Simon
Grassley (by proxy) Feingold
Brown
Thompson
Kyl
DeWine
Abraham
Heflin (by proxy)
Kohl (by proxy)
Feinstein
11. Abraham's amendment to increase adminstrative
efficiency by authorizing State Court's to make findings of
fact regarding the deportability of criminal aliens during the
criminal sentencing by a vote of 11 yeas to 5 nays.
YEAS NAYS
Hatch Kennedy
Thurmond (by proxy) Leahy
Simpson Simon
Grassley Kohl (by proxy)
Brown Feingold
Thompson
Kyl
DeWine
Abraham
Heflin (by proxy)
Feinstein
12. Leahy's amendment to strike restrictions against
withholding of deportation and asylum applications by a vote of
8 yeas to 8 nays.
YEAS NAYS
DeWine Hatch
Abraham Thurmond
Biden (by proxy) Simpson
Kennedy Grassley
Leahy Brown
Simon Thompson
Kohl Kyl
Feingold Feinstein
13. Simpson's amendment to revise the bill's requirements
for improvements in birth certificates to by a vote of 9 yeas
to 7 nays.
YEAS NAYS
Simpson Hatch
Grassley Thurmond (by proxy)
Brown Thompson
Kyl DeWine
Kennedy Abraham
Heflin (by proxy) Leahy (by proxy)
Simon Feingold
Kohl
Feinstein
14. Abraham's Motion to divide the bill into two separate
bills, one addressing illegal immigration and one addressing
legal immigration by a vote of 12 yeas to 6 nays.
YEAS NAYS
Hatch Simpson
Thurmond (by proxy) Grassley
Specter (by proxy) Brown
Thompson Kyl
DeWine Heflin
Abraham Feinstein
Biden (by proxy)
Kennedy
Leahy (by proxy)
Simon
Kohl (by proxy)
Feingold
15. Simon second degree amendment to Senator Specter's
amendment to make technical changes to Section 155 of the bill.
YEAS NAYS
Simon Hatch
Kohl (by proxy) Thurmond (by proxy)
Feingold Simpson
Grassley
Specter (by proxy)
Brown
Kyl
DeWine
Abraham
Kennedy
Leahy (by proxy)
Feinstein
16. Senator DeWine's amendment to strike section 194: Time
limitation on asylum claims, was agreed to by a roll call vote
of 16 yeas to 1 nay.
YEAS NAYS
Hatch Simpson
Thurmond (by proxy)
Grassley
Specter
Brown (by proxy)
Thompson
Kyl
DeWine
Abraham
Kennedy
Leahy (by proxy)
Heflin (by proxy)
Simon
Kohl (by proxy)
Feinstein
Feingold
17. Senator DeWine's amendment to strike section 172: Open-
Field searches was agreed to by a roll call vote of 12 yeas to
5 nays.
YEAS NAYS
Hatch Thurmond (by proxy)
Specter (by proxy) Simpson
Brown Grassley
Kyl Thompson
DeWine Feinstein
Abraham
Biden (by proxy)
Kennedy
Leahy (by proxy)
Simon (by proxy)
Kohl (by proxy)
Feingold
18. Senator Kyl's amendment to authorize funding for a
three-tier fence in the San Diego Area. The amendment provides
for construction along 14 miles near San Diego, of second and
third fences, in addition to the existing reinforce fences, and
for roads in between the fences was agreed to by a roll call
vote of 12 yeas to 4 nays.
YEAS NAYS
Hatch Kennedy
Thurmond (by proxy) Leahy (by proxy)
Simpson Simon
Grassley Feingold
Specter (by proxy)
Brown
Thompson (by proxy)
Kyl
DeWine
Abraham
Kohl
Feinstein
19. Senator Simpson's amendment to require sponsors to
submit most recent 3 years of income tax returns, in order to
show that the sponsor would be able to fulfill his or her
contractual obligation to provide assistance when the sponsored
person is in financial need was agreed by a roll call vote of
13 yeas to 2 nays.
YEAS NAYS
Hatch DeWine
Thurmond (by proxy) Simon
Simpson
Grassley (by proxy)
Brown
Thompson
Kyl
Abraham
Kennedy
Leahy (by proxy)
Kohl
Feinstein
Feingold
20. Senator Kennedy's amendment to limit public assistance
safety net restriction for legal immigrants to programs of cash
assistance was defeated by a roll call vote of 4 yeas to 12
nays.
YEAS NAYS
Specter (by proxy) Hatch
Kennedy Thurmond (by proxy)
Leahy (by proxy) Simpson
Simon Grassley (by proxy)
Brown
Thompson
Kyl
DeWine
Abraham
Kohl
Feinstein
Feingold
21. Senator Simon's amendment to strike of Retroactive
Deeming Requirements was defeated by a roll call vote of 7 yeas
to 9 nays.
YEAS NAYS
Hatch Thurmond (by proxy)
Specter (by proxy) Simpson
DeWine Grassley
Kennedy Brown
Leahy (by proxy) Thompson
Simon Kyl
Feinstein Abraham
Kohl (by proxy)
Feingold
22. Senator Kennedy's amendment to provide exceptions to
sponsor deeming for legal immigrants when public health is at
stake, for school lunches, for child nutrition programs, and
for other purposes was defeated by a roll call vote of 7 yeas
to 8 nays.
YEAS NAYS
Specter (by proxy) Hatch
DeWine Thurmond (by proxy)
Kennedy Simpson
Leahy (by proxy) Grassley
Simon Brown
Feinstein Thompson
Feingold Kyl
Abraham
23. Senator Kennedy's amendment to exempt legal immigrants
from restrictions on educational assistance for aliens was
defeated by a roll call vote of 7 yeas to 9 nays.
YEAS NAYS
Specter (by proxy) Hatch
DeWine Thurmond (by proxy)
Kennedy Simpson
Leahy (by proxy) Grassley
Simon Brown
Kohl (by proxy) Kyl
Feingold Thompson
Abraham
Feinstein
24. Senator Kyl's amendment offered by Senator Leahy to
strike sections 212, the Border Crossing Fee was agreed to by a
roll call vote of 13 yeas to 4 nays.
YEAS NAYS
Hatch Thurmond (by proxy)
Specter (by proxy) Simpson
Brown (by proxy) Grassley
Thompson Feinstein
Kyl
DeWine
Abraham
Kennedy
Leahy
Heflin (by proxy)
Simon
Kohl (by proxy)
Feingold
25. Senator Kennedy's amendment to limit pregnancy services
for undocumented aliens was agreed to by a roll call vote of 8
yeas to 7 nays.
YEAS NAYS
Hatch Thurmond (by proxy)
Specter (by proxy) Simpson
DeWine (by proxy) Grassley
Kennedy Brown
Leahy (by proxy) Thompson
Simon Kyl
Feinstein Abraham
Feingold
26. Senator Brown's amendment to strike section 213, Cruise
Line Fees by a roll call vote of 9 yeas to 7 nays.
YEAS NAYS
Hatch Thurmond (by proxy)
Specter (by proxy) Simpson
Brown Grassley
Thompson Kennedy (by proxy)
Kyl Simon
DeWine Feinstein
Abraham Feingold
Leahy
Heflin
27. Senator Feinstein's amendment to end deeming at
citizenship (Strike lines 14-18, Title II-9, and insert the
following) was agreed to by a roll call vote of 11 yeas to 5
nays.
YEAS NAYS
Hatch Thurmond (by proxy)
Specter (by proxy) Simpson
Thompson Grassley
DeWine Brown
Abraham Kyl
Kennedy
Leahy (by proxy)
Simon
Kohl (by proxy)
Feinstein
Feingold
28. Senator Feingold's amendment to Strike Section 209,
Limitation on the Award of Costs and Fees was agreed to by a
vote of 10 yeas to 5 nays.
YEAS NAYS
Hatch Thurmond (by proxy)
Specter (by proxy) Simpson
Thompson Grassley
DeWine Brown
Abraham Kyl
Kennedy
Leahy (by proxy)
Simon
Kohl (by proxy)
Feingold
29. To report the bill favorably as an original bill:
YEAS NAYS
Hatch Kennedy
Thurmond (by proxy) Leahy (by proxy)
Simpson Simon
Grassley Feingold
Specter (by proxy)
Brown
Thompson
Kyl
DeWine
Abraham
Heflin (by proxy)
Kohl (by proxy)
Feinstein
The following amendments were agreed to by unanimous
consent:
1. Simpson Amendment to require report by the
Attorney General on need for detention space.
2. Simpson technical amendment to prevent double
counting of long-term parolees.
3. Simpson amendment to provide that a stay of
deportation or exclusion is not automatic when an alien
seeks judicial review [bill would allow appeals to be
pursued from abroad].
4. Simpson amendment with respect to motions to
reopen in absentia deportation orders, provides that
automatic stay of deportation applies only until judge
decides on the motion (thereafter, stay ends unless
there are ``individually compelling circumstances'').
5. Simpson amendment regarding new cancellation of
exclusion and deportation provision [which replaces
suspension of deportation under 212(c) and 244(a)],
restore two provisions from current law which provide
more generous treatment for battered spouses and less
generous treatment for criminal aliens.
6. Simpson amendment to bar to re-entry after
exclusion is increased to 5 years [currently 1 year].
7. Simpson amendment to require fingerprinting of
illegal aliens apprehended anywhere in the U.S.
8. Simpson amendment to add conspiracy to the
offenses listed in bill sec. 125 (expanded forfeiture)
and 126 (criminal forfeiture) and 126 (criminal
forfeiture)
9. Simpson amendment to add 18 U.S.C. 1541 (passport
issuance without authority) to bill sec. 128 (increased
criminal penalties for fraudulent use of government-
issued documents)
10. Simpson amendment to add coverage of 18 U.S.C.
1541 to sentencing guidelines for various offenses
relating to document fraud.
11. Simpson amendment that for purposes of the
terrorism ground of exclusion, to expand definition of
``engage in terrorist activity'' to include providing
false documentation.
12. Grassley amendment designating Congress as one of
the five verification system demonstration projects.
13. Kyl amendment to limit liability of employers
complying with any verification system or pilot project
verification system.
14. Kyl amendment to require that any alien who has
overstayed a visa return to his or her home country to
obtain another visa from the consular office there. It
was agreed that Senators would work to modify the
amendment further.
15. Kennedy's Omnibus Amendment to Improve Criminal
Provisions.
16. Feinstein's amendment to increase personnel
levels for the Labor Department was accepted after
being modified by a Simon amendment to add a section on
Preference for bilingual wage and hour inspectors.
17. Kyl's amendment to expand detention facilities to
at least 9,000 beds by fiscal year 1997.
18. Kyl's amendment to advise the President to add a
component to the prison transfer treaty language that
states that if a transferred prisoner returns to the
United States prior to the completion of his original
U.S. sentence, the U.S. sentence is not discharged.
19. Kyl's amendment to Judicial Review Provisions of
Section 142.
20. Senator Grassley's amendment, with a modification
made by Senator Kennedy, regarding acceptance of state
services to carry out immigration enforcement.
21. Senator Specter's amendment to make technical
changes to Section 155 of the bill.
22. Senator Feingold's amendment to build some
accountability into the process of hiring all of the
new agents authorized by the bill.
23. Senator Kyl's amendment to increase the number of
Border Patrol agents by 1,000 per year over the next
five years, with a modification.
24. Senator Brown's amendment to provide similar
treatment to employment agencies that refer for a fee
and State employment agencies.
25. Senator Brown's amendment to deny asylum for
those who file for the first time in deportation
proceedings which began more than 1 year after entry
into the United States with some exceptions, was agreed
to with a commitment to further modify the language.
26. Senator Kennedy's amendment to ensure compliance
with treaty obligations pertaining to refugees, with a
modification.
27. Senator Kyl's amendment to add a new section XXX
Immigration Judges and Compensation.
28. Senator Brown's modified amendment to deny asylum
for those who file for the first time in deportation
proceedings which began more than 1 year after entry
into the United States with some exceptions.
29. Senator Brown's modified amendment to provide for
an exception to the strict liability for record keeping
requirements in cases of disaster, acts of God, and
other events beyond the control of the person or
entity.
30. Senator Simpson's amendment to provide exception
from deeming requirement if sponsored individual is in
hardship.
31. Senator Kyl's amendment to require the states and
localities be reimbursed for transporting illegal
aliens injured while attempting to cross the U.S.
border.
32. Senator Kyl's amendment to require the federal
government to reimburse states and localities for the
costs associated with providing emergency services to
illegal aliens; that all hospitals and facilities that
are contracted out by local and state governments would
be eligible for reimbursement; that the non-profit and
for-profit hospitals that service a disproportionate
share of low income patients, as defined by Medicare
provision in the Social Security Act, are eligible for
reimbursement.
33. Senator Kyl's amendment to require the Department
of Education together with the Social Security
Administrator to report within one year on the
effectiveness of their program to verify the status of
all applicants applying for higher education benefits.
34. Senator Kyl's modified amendment to strike
section 120A: Office for the enforcement of employer
sanctions.
35. Senator Kyl's modified amendment to section
111(b), to limit the amount employers will have to
spend complying with the verification system.
36. Senator Kyl's modified amendment to require that
any alien who has overstayed a visa return to his or
her home country to obtain another visa from the
consular office there.
37. Senator Grassley's amendment to create an
exemption from deeming for nonprofits, with an
understanding that the parties would continue to work
out language if necessary.
38. Senator Kennedy's amendment to preclude
immigration checks by community-based service
organizations for certain assistance programs, as
determined by the Attorney General.
39. Simpson amendment, as modified, to require the
State Department to deny visas to nationals of
countries that refuse to accept nationals (waiver if
denial would be inconsistent with a treaty or executive
agreement).
The following amendments were agreed to by voice vote:
1. Kyl amendment to strike section 118: Retention of
fines for purposes of law enforcement.
2. Kyl amendment to strike the asset forfeiture
provisions regarding unlawful employment of aliens.
3. Feinstein's amendment to establish a Demonstration
Project for Identification of Illegal Aliens in
Incarceration Facility of Anaheim, CA.
4. Brown's amendment to exclude aliens that incite
violence or terrorist acts against the U.S. Government,
citizens, or officials.
The following amendment was rejected by voice vote:
Simon amendment to Judicial Review Provisions of
section 142.
VI. Cost Estimate
The Congressional Budget Office estimate of the costs of
this measure and compliance with the requirements of the
Unfunded Mandates Reform Act has been requested but had not
been received at the time the report was filed. When the report
is available, the chairman will request that it be printed in
the Congressional Record for the advice of the Senate.
VII. Regulatory Impact Statement
In compliance with Rule 26.11b of the Standing Rules of the
Senate, the committee hereby states that the committee bill's
only significant regulatory impacts will result from the
following provisions: sec. 111 and 112 direct the President to
conduct pilot projects on systems to verify eligibility to work
and eligibility to receive welfare benefits, and to recommend
such a system to Congress for implementation; sec. 116(b)
provides for a reduction in the number of acceptable documents
for purposes of the law against knowing employment of
unauthorized aliens and authorizes the Attorney General to
prohibit use of additional documents; Sec. 118 provides for
regulations of the Secretary of Health and Human Services to
set standards for U.S. birth certificates, and for regulations
of the Secretary of Transportation to set standards for State-
issued drivers licenses and identification documents; and Sec.
151(c) provides that the Attorney General may by regulation
take immediate custody of any stowaway and charge the owner,
charterer, agent, consignee, agent, commanding officer, or
master of the vessel or aircraft on which the stowaway has
arrived the costs of detaining the stowaway.
VIII. ADDITIONAL VIEWS OF SENATOR HATCH
I am gratified that the committee supported my amendment to
strike increases in civil and criminal penalties against
employers for violations of the sanctions provisions under
current law. I am similarly gratified that the committee
adopted several Kyl/Hatch amendments. These amendments struck
civil and criminal asset forfeiture penalties for employer
sanctions violations; rejected the notion of a revolving fund
for fines assessed against employers going back to the INS; and
dedicated more funds to educating employers in lieu of a
separate Office of Sanctions Enforcement.
About 10 years ago, Congress enacted what was described as
a key component of a program to control illegal immigration,
making it illegal for employers to hire knowingly persons
unauthorized to work in the United States.
This employer sanctions regime is well-intentioned. In my
view, however, the employer sanctions regime is mistaken. While
I have in the past supported an outright repeal, the intent of
my amendment and those amendments offered by Senator Kyl was
simply to ensure that this bill did not make the current
situation worse.
First, I do not believe we should, in effect, convert our
nation's employers into guardians of our borders--that is a job
for the Border Patrol and the INS. We should beef up our effort
to control illegal immigration at the border and to track visa
overstayers, and I am pleased that the bill reported by this
committee does exactly that. Our employers, however, have
enough to do competing in the global marketplace while
complying with hundreds of other federal rules and regulations.
Second, employer sanctions do not work. If they did, we
would not be debating a verification system. If sanctions
worked, we would not have the level of concern we presently
have about the very issue of illegal immigration. We would not
have seen so much television footage of persons illegally
crossing our borders by running against traffic on highways in
order to defeat vehicular pursuit. We would not have seen a
ship grounded off of our New Jersey shore a few years ago
loaded with aliens to be smuggled into our country. We would
not be reading about illegal aliens loaded onto box cars which
are then sealed south of our border on their way north.
Third, employer sanctions have had serious adverse
consequences. These are unintended, but still very real. A
cottage industry of phony documents used to beat to system has
been further spurred by employer sanctions. Moreover, employer
sanctions are an unintended, but inevitable, incentive to
employers to discriminate against persons who look and sound
foreign. And while such discrimination is forbidden by the 1986
Immigration Reform and Control Act, not all such discrimination
can be uncovered and remedied.
The problem with employer sanctions is not in the details,
it is in the very concept. We should resist the notion that
they need to be ``tightened up'' or ``made tougher.'' All we
will achieve is placing more burdens on business.
Finally, the bill retains significant increases for
personnel directed to investigate and prosecute employers for
sanctions violations. I remain concerned about those increases.
These new investigators and prosecutors, in my view, should be
dedicated to going after smugglers and document fraud, not
American employers.
Orrin Hatch.
IX. ADDITIONAL VIEWS OF SENATOR ABRAHAM
I would like to express my support for the final illegal
immigration reform bill (S. 269) worked out by this committee.
It is, in my view, much improved over the original. This final
version of the bill makes needed, substantive reforms because
it now focuses on the real problem of illegal immigration
without punishing law-abiding employers and immigrants who play
by the rules. It now concentrates on better enforcement, both
at the border and in dealings with visa overstayers and
criminal aliens. It restricts welfare use by immigrants. It no
longer includes a harmful border tax. And, while progress in my
view remains to be made in this area, it no longer institutes a
mandatory identification system that would needlessly harm
workers, employers and law-abiding citizens. These are changes
I believed were called for in the original bill. Indeed, I
introduced my own immigration reform bill, S. 1535, in part as
an effort to put on the table a number of changes that I am
happy to say ended up as amendments incorporated in the final
bill.
First let me say that I am gratified that the committee
voted overwhelmingly, 12 to 6, for my amendment to split the
bill back into its original two parts--one dealing with illegal
and the other with legal immigration. I argued throughout that
this presented a threshold issue, which would determine whether
we would place sufficient emphasis on stemming the tide of
illegal immigrants without endangering the rights and well-
being of Americans and law-abiding immigrants. It is my firm
intention to seek to maintain the separation of illegal and
legal immigration reform when these matters reach the Senate
floor, and throughout the legislative process.
By splitting the bill, we allowed ourselves to focus on
immigrants who flout our laws. Thus, the committee adopted the
Kyl-Abraham amendment to increase by 300 the number of extra
border patrol agents the bill would add each year, to a total
of 1,000 per year. Further, recognizing that roughly one half
of all illegal aliens enter this country legally, then overstay
their visas, the committee adopted my amendment to apply real
sanctions to those who overstay their allotted time. My
amendment imposes a forced waiting period of at least three
years before any visa overstayer can be considered for another
visa.
As important, we made real progress toward ridding our
nation of the 450,000 criminal aliens in our jails and on our
streets. A package of four amendments that I sponsored was
adopted. This package will: (1) Prohibit the Attorney General
from releasing convicted criminal aliens from custody; (2) End
judicial review for orders of deportation entered against these
criminal aliens--while maintaining the right to administrative
review and the right to review the underlying conviction; (3)
Require the Attorney General to deport criminal aliens within
thirty days of the conclusion of the alien's prison sentence--
with exceptions made only for national security reasons or on
account of the criminal alien's cooperation with law
enforcement officials; and (4) Permit state criminal courts to
enter conclusive findings of fact, during sentencing, that an
alien has been convicted of a deportable offence. These
provisions will aim our efforts toward the real problem of
criminal activity, and away from measures that do more to hurt
Americans and others who play by the rules than the law-
flouters we are after.
The committee also approved the Kyl-Leahy-Abraham amendment
to strike the border tax that would have hurt our burgeoning
trade with both Canada and Mexico. Canada alone purchased $115
billion of U.S. goods last year. The increased congestion at
border crossings, the increased expense and the increased delay
for truckload shipping could only hurt this trade, and the many
workers engaged in it.
Finally, Mr. Chairman, I would like to mention one area in
which I believe we did not go far enough in changing the
original illegal immigration reform bill. I am pleased that we
did away with the original mandatory employee verification
system. The costs would have been staggering, the system
horribly inefficient and the burden on workers misidentified by
mistake-riddled government records appalling. Unfortunately,
the bill now contains a provision, authored by Senator Kennedy,
that provides for ``local and regional'' pilot programs in
states with high numbers of illegal aliens.
I oppose this provision, Mr. Chairman, and intend to offer
an amendment with Senators Feingold and DeWine to strike it
from the bill when it reaches the floor. Why do we oppose it?
Because the new system would be inefficient and, before long,
both national and mandatory. That the scope of the provision
will expand seems clear. Only the ``regional'' language imposes
any limit. There is no bar to the creation of a comprehensive
national database. And projects, while ``regional'' could be of
unlimited number. What is more, this provision sets up the
bureaucracy, imposes employer mandates, and imposes new
liabilities on employers which would make transition to a
national system almost automatic. Indeed, the provision calls
for the President to present Congress with a plan for a
nationwide system after just four years. It is my firm belief
that we should stick with reforms in the existing
identification structure without imposing this new burden on
workers and employers.
So overall, Mr. Chairman, I am satisfied that this bill now
includes the prudent law enforcement measures needed to get
illegal immigration under control. I remain concerned, however,
that the Kennedy provision will produce a costly, intrusive,
and ineffective national employee verification system, and I
intend to fight the provision on the floor.
Senator DeWine joins in these views.
Sam Abraham.
X. ADDITIONAL VIEWS OF SENATORS De WINE, ABRAHAM, AND FEINGOLD
We wish to note our strong opposition to the provision that
relates to identification-related documents.
The committee amended the bill as it pertains to national
standards for birth certificates and drivers licenses. Section
118 no longer, by its terms, requires that such identification
documents include fingerprints or other biometrics data; it
nevertheless charges the Secretary of Health and Human Services
with developing federal standards to make these documents less
susceptible to counterfeiting. The committee also removed the
requirement that states develop methods for matching death
certificates and birth certificates. This requirement was
replaced by a section that would encourage states to establish
pilot programs that would implement certificate matching
systems.
Notwithstanding these changes, we remain strongly opposed
to section 118.
First, since this provision dictates to state agencies the
type of documents they may accept and the form of documents
they must issue, even for solely state purposes, we believe it
raises serious concerns regarding federalism. States should be
free to determine the standards of their own documents of
record.
Second, the burdens imposed on the states by the
requirements regarding document safety features appears to be a
substantial unfunded mandate. Additionally, proponents have
failed to provide any estimate as to what these mandates would
cost.
Likewise, the federal costs associated with this section
are also unspecified. Neither the federal document issuance
costs nor the cost of pilot programs has been estimated. To
commit to the funding of a federally-mandated program without
any notion of the likely cost of that mandate is ill-advised.
Finally, leaving decisions regarding what features these
documents should contain to federal bureaucrats is unwise and
potentially dangerous. Under the current language, HHS could
develop standards even more intrusive and costly than those
articulated in the original legislation. We do not believe that
the setting of such standards should be left to the federal
bureaucracy with nothing more than a requirement that they
consult with the states who will be burdened by those
standards. The bill does not provide for any congressional
review of the standards, nor does it impose any limit on what
HHS can mandate. The provision is ill-conceived, and contrary
to any reasonable concern for civil liberties.
Mike DeWine.
Spencer Abraham.
Russ Feingold.
XI. ADDITIONAL VIEWS OF SENATORS DeWINE, KENNEDY, AND FEINGOLD
We wish to note our serious reservations regarding Section
194, the provision dealing with a time limitation on asylum
claims.
As originally written, that section would have required
aliens seeking asylum to file for such asylum within thirty
days of arriving in the United States. Along with Senators
Abraham and Feingold, we introduced an amendment to strike this
time limit. We noted that, since INS had imposed new asylum
application regulations in late 1994, the flagrant abuses of
the asylum process had been substantially reduced. Further, we
and other amendment sponsors noted that the persons most
deserving of asylum status--those under threat of retaliation,
those suffering physical or mental disability, especially when
abuse resulting from torture--would most be hurt by the
imposition of any filing deadline, and particularly so, if the
deadline was thirty days. We are pleased that the committee, by
a 16 to 1 vote, agreed, and struck the thirty day time limit.
The committee then passed an amendment to section 194
offered by Senator Brown, which imposed a one year filing
deadline, but permitted persons to file later than one year if
they can show good cause for not filing sooner. While this
language is far better than the original thirty day time limit,
we remain concerned that any limit creates unnecessary hardship
on those who are deserving of asylum, but who may find it
difficult to show good cause under the standard of amended
section 194.
Our concern is borne out by report language which states
that ``[g]ood cause'' could include circumstances that changed
after the applicant entered the U.S. and that are relevant to
the applicant's eligibility for asylum; physical or mental
disability; threats of retribution against the applicant's
relatives abroad; or other extenuating circumstances, as
determined by the Attorney General.'' (Emphasis added.) By a
16-to-1 vote, the committee agreed that 30 days was
insufficient time to allow persons to file for asylum. The
discussion on this section also illustrated clearly that the
types of circumstances indicated in the report language were
not only things that ``good cause'' could include, but were
things that ``good cause'' did include. Unfortunately, the
report, as written, would allow the issuance of federal
regulations that might exclude the very types of applicants
that the committee specifically intended to include. As a
result, we wish to express my continuing concern with the
imposition of any time limits on asylum seekers. In the
alternative, we urge that ``good cause'' be broadly defined to
include all reasonable circumstances that could prevent a
deserving asylum seeker from applying for asylum. This action
is completely consistent with the historical precedents that
have long made the United States a haven for those persecuted
for their political and religious beliefs.
Mike DeWine,
Ted Kennedy,
Russ Feingold.
XII. MINORITY VIEWS OF SENATORS KENNEDY, SIMON, AND LEAHY
Any serious legislative effort to better control illegal
immigration not only must enhance border enforcement, but also
must deny the magnet of jobs to those in the United States
unlawfully. This bill represents major progress in addressing
both these facets of the illegal immigration problem by
increasing border patrol agents, immigration inspectors, and
Labor Department inspectors, and, as discussed in greater
detail below, by imposing stiff new penalties for alien
smuggling, document fraud, and operation of sweatshops. While
we may disagree on the merits of the bill's employment
eligibility verification proposals, we can agree that there is
much to be said for the bill's efforts in the area of illegal
immigration.
However, at the same time it accomplishes the worthy goal
of deterring and preventing illegal immigration, the bill also
proceeds at the expense of legal immigrants, refugees, and
American citizens. It jeopardizes our tradition of providing
haven to those fleeing political persecution. It denies a
safety net to legal immigrant families who are here legally,
playing by the rules, and contributing to our communities--but
who may fall on hard times through no fault of their own--and
in so doing, places the public health and safety at risk.
Finally, it fosters discrimination against American citizens
and legal immigrants by limiting the available remedies against
employers who treat foreign-looking or foreign-sounding
American job applicants different from the rest of Americans.
I. Bad News: Denial of Safety Net to Legal Immigrants
While the bill ostensibly focuses on illegal immigration,
title II mainly contains limitations on legal immigrants'
access to a wide array of public programs. Many of these
individuals, who have played by the rules while other aliens
have chosen to flout them, will under this bill find themselves
effectively barred from receiving virtually any means-tested
government assistance for at least 5 years, including:
Assistance that this bill, in the public
interest, makes freely available to illegal immigrants,
such as emergency medical care, emergency disaster
relief, and immunization assistance.
Child Nutrition programs, Head Start, and
school lunches.
Higher education and job training assistance--
the very tools that would enable immigrants to escape
welfare dependence in the future.
The committee's decision to disaggregate the legal and
illegal immigration proposals approved by the subcommittee
arose from the belief that the two subjects are distinct, and
that the national furor over illegal immigration should not be
allowed to poison our view of immigrants who have come to the
United States legally, paid taxes, served in our military, and
been productive members of our communities. Yet the bill's
treatment of legal immigrants in the welfare reform context
reflects exactly what we sought to avoid in separating illegal
from legal immigration legislation.
The bill's welfare reform provisions are premised on the
twin notions that: (1) As a matter of fact, many immigrants
come to, or stay in, this country not to work hard and earn a
living, but to feed from the public trough at taxpayer expense;
\1\ and (2) As a matter of policy, immigrants' sponsors, not
the United States government, should assume responsibility for
immigrants' welfare until the immigrant has sufficiently paid
into the system.\2\ Because of these concerns, the bill:
---------------------------------------------------------------------------
\1\ See Committee Report at (``Before the welfare state, if an
immigrant could not succeed in the U.S., he or she often returned to
the `old country.' This happens less often today, because of the
welfare `safety net.' '')
\2\ Id. at (``It should be made clear to immigrants that the
taxpayers of this country expect them to be able to make it in this
country on their own and with the help of their sponsors.'')
---------------------------------------------------------------------------
Renders deportable any immigrant who has
received almost any means-tested state or federal
benefits for an aggregate of 12 months within his first
five years in the United States;
Requires an immigrant sponsor to undertake a
binding contractual obligation to support the immigrant
until he has worked 40 ``qualifying quarters'' or has
naturalized; and
Requires an immigrant sponsor's income to be
``deemed'' to the immigrant for the duration of the
sponsor's contract of support when determining the
immigrant's eligibility for any means-tested federal
benefit.
While we are sensitive to some of the concerns motivating
these provisions, and in fact agree with many of the underlying
principles of sponsor responsibility that they embody, these
proposals betray a fundamental misconception about immigrants'
utilization of government assistance. Moreover, they are simply
too inflexible and harsh in their restrictions on immigrants'
access to an overly broad array of government assistance
programs.
The bill's benefits provisions have a variety of other,
unintended consequences that furnish additional justification
for our opposition to this bill. First, with the bill's removal
of the federal safety net for immigrants, state and local
assistance providers will face an unexpected and substantial
cost-shift as immigrants who are barred from federal assistance
look elsewhere for aid. This cost shift is incompatible with
the federal government's plenary power over immigration, and
likely an unlawful unfunded mandate. Second, these provisions
will create innumerable bureaucratic problems for federal,
state, local, and private service providers, who will now be
saddled with the administrative burdens of determining which
immigrant applicants for assistance are entitled to benefits,
which have sponsors, and what their sponsors' income is. While
the worst of these problems were solved by amendments offered
successfully by Senators Kennedy and Grassley to exclude non-
profits and certain community-based organizations from having
to conduct immigration inspections, the administrative problems
caused by these rules persist with a variety of other
providers, and threaten not only immigrants' access to benefits
but the ability of native-born Americans to access these
services in an efficient manner.
the facts
Despite concerns about immigrants' use, or abuse, of
government benefits, the facts are that:
The overwhelming majority of legal immigrants
(over 93 percent) do not use ``welfare'' as
conventionally defined--i.e., Aid to Families with
Dependent Children (AFDC), Supplemental Security Income
(SSI), or General Assistance.\3\
---------------------------------------------------------------------------
\3\ See Fix, Passel, and Zimmerman, ``The Use of SSI and Other
Welfare Programs by Immigrants,'' Written Testimony of the Urban
Institute Before the Senate Subcommittee on Immigration and Refugee
Affairs, February 6, 1996 (``Urban Institute Testimony''), at 2.
---------------------------------------------------------------------------
While immigrants have slightly higher welfare
use rates than native-born Americans, (6.6 percent of
immigrants access welfare versus 4.9 percent of the
native-born population),\4\ welfare use among
immigrants is concentrated among refugees and elderly
immigrants receiving SSI. These two subpopulations make
up 21 percent of the immigrant population, but comprise
40 percent of immigrant welfare users.\5\ Refugees--who
are not sponsored into the United States, and to whom
we owe distinct obligations as a matter of
international law--are not subject to most of the
restrictions in the bill.
---------------------------------------------------------------------------
\4\ Ibid. See also March 1994 Current Population Survey (CPS).
\5\ Fix, Zimmerman, ``When Should Immigrants Receive Public
Benefits,'' The Urban Institute, Immigrant Policy Program, May 1995, at
4-5. See also March 1994 CPS.
---------------------------------------------------------------------------
Poor immigrants are less likely than poor
native-born Americans to use welfare. 16 percent of
poor immigrants used welfare versus 25 percent of poor
native-born Americans.\6\
---------------------------------------------------------------------------
\6\ Id. at 6.
---------------------------------------------------------------------------
There is real evidence of immigrants'
disproportionate use of SSI. In 1993, elderly
immigrants comprised 28 percent of SSI users, but only
9 percent of the total elderly population.\7\ However,
there is no evidence of immigrant abuse with respect to
other government assistance programs.\8\
---------------------------------------------------------------------------
\7\ Id. at 5. See also Scott and Ponce, ``Aliens Who Receive SSI
Benefits,'' Office of Supplemental Security Income, Social Security
Administration, March 1994.
\8\ ``It would appear that the disproportionate use of benefit
programs by immigrants is confined largely to the Supplemental Security
Income program for the aged, blind, and disabled.'' Written Testimony
of Susan Forbes Martin, Executive Director, U.S. Commission on
Immigration Reform, before the Senate Subcommittee on Immigration and
Refugee Affairs, February 6, 1996 (``Commission Testimony''), at 2.
---------------------------------------------------------------------------
Welfare use among non-refugee immigrants of working
age is about the same as that for natives, 5.1 percent versus
5.3 percent.9
---------------------------------------------------------------------------
\9\ Urban Institute Testimony at 5. See also March 1994 CPS.
---------------------------------------------------------------------------
Clearly, claims of widespread immigrant abuse of government
assistance programs are unfounded. Like their predecessors,
from whom most of us are descended, today's legal immigrants
work hard, contribute to our coffers more than they
take,10 and shun dependence on government assistance
whenever possible. This is not to say that no areas of abuse
exist, or that all immigrants fit into this mold, but rather
that any reforms of immigrant eligibility for government
benefits must be carefully crafted to provide assistance to
those who deserve and need it, and to reserve the most severe
restrictions for those programs that have been prone to some
abuse. The bill falls short of achieving this careful balance,
and instead takes a cookie-cutter approach that treats all
government assistance as identical and fungible, at the expense
of sensible, far-sighted policy making.
---------------------------------------------------------------------------
\10\ The Urban Institute has estimated that post-1970 legal
immigrants have generated a net surplus of $25 billion in government
revenues. See Fix and Passel, Immigration and Immigrants: Setting the
Record Straight, The Urban Institute, May 1994, at 60.
---------------------------------------------------------------------------
The Benefits Provisions of the Legislation
A. Public Charge--As noted, section 202 renders deportable
as a ``public charge'' an immigrant who receives virtually any
means-tested federal or state benefit for an aggregate of 12
months during his first 5 years in the United States.
Notwithstanding the majority's claims that section 202 simply
clarifies existing law, which denies entry to any immigrant who
is likely to become a ``public charge'' in his first 5 years in
the United States, section 202's definition of who constitutes
a ``public charge'' is new, and of such an overwhelming sweep
as to be at odds with fundamental fairness.
First, and most important, section 202 includes absolutely
no limitations period cabining the Attorney General's ability
to deport a ``public charge.'' Thus, an individual who received
12 months worth of public assistance between 1997 and 2002
could still be deported as a public charge in 2025, or 2045, or
2065, after she got settled, found steady work, raised a
family, and became a productive member of society.11
Fairness and predictability require that the Attorney General
not be given authority in perpetuity to deport an immigrant for
conduct occurring during the immigrant's first five years here.
---------------------------------------------------------------------------
\11\ The lack of a limitations period is particularly problematic
given that ``[a]verage household incomes of legal * * * immigrant
households rise with time in the United States and surpass those of
natives after ten years in this country.'' See Fix and Passel,
Immigration and Immigrants: Setting the Record Straight, at 69. Thus,
while an immigrant may at an early point in her tenure in this country
rely on government benefits, it is likely that at a later point, she
will become a contributing member of society, and may in fact have the
wherewithal to reimburse the government for services rendered in the
past. Nothing in the bill's public charge provisions accounts for this
likelihood.
---------------------------------------------------------------------------
Second, even if some suitable limitations period were added
to the public charge provisions, section 202 sweeps far too
broadly. The array of government programs that serve as
predicates for deportation under these provisions is
astounding. It includes, in addition to cash programs
traditionally defined as welfare: Head Start; Pensions for
veterans; rural housing loans; student loans; low income energy
assistance; job training programs; and many, many other non-
cash programs. Thus, for example, an immigrant who arrives in
1996 and receives a one-year Pell Grant in 1998 to complete his
education is deportable because of that transgression. While
there is merit to the notion that immigrants should not arrive
in the United States and immediately fall into reliance on
government assistance, the list of programs giving rise to
deportability under section 202 includes assistance that falls
outside our traditional notions of welfare, that should be
available to all individuals in the public interest, and that
will ultimately enable legal immigrants from escaping the kind
of welfare dependency that the majority frowns on. The House
Immigration Bill, H.R. 2202, chose precisely this route,
limiting the public charge predicate programs to six: AFDC,
Food Stamps, SSI, Medicaid, Housing Assistance, and State
general assistance.
We will be offering amendments on the floor to address our
concerns with this section.
B. Binding Affidavits of Support--Under current law, the
affidavit of support signed by an immigrant sponsor as a
condition of an immigrant's entry into the United States has no
legal effect, and imposes no enforceable obligation on the part
of the sponsor to support the immigrant once he enters the
United States. Section 203 of the bill requires anyone
sponsoring an immigrant after the bill's enactment to sign a
new, legally enforceable document imposing on the sponsor a
contractual obligation to support the immigrant until he works
40 ``qualifying quarters'' or naturalizes. This obligation is
enforceable by government agencies that have provided services
to the immigrant, or by the immigrant himself, if she has been
denied government benefits on the basis of the deeming rules
contained in section 204.
We support the committee's decision to give the affidavit
of support binding effect. Doing so disciplines sponsors,
protects immigrants, and safeguards taxpayers.12 We also
support the committee's decision to pass an amendment offered
by Senators Feinstein, Simon, and Kennedy to end the affidavit
of support's effect--as well as the bill's deeming provisions--
at the moment the immigrant naturalizes. While this approach
arguably creates the incentive to naturalize for the purpose of
obtaining benefits, this is a cynical view of immigrants'
behavior that is not consistent with the facts.13 More
important, extending the affidavit of support and the deeming
provisions to naturalized citizens creates serious
constitutional problems, given the Supreme Court's holding that
under the equal protection component of the fifth amendment,
``the rights of citizenship of the native born and of the
naturalized person are of the same dignity and coextensive.''
Schneider v. Rusk, 377 U.S. 163, 165 (1964). Conditioning the
ability of naturalized citizens--but not native-born citizens--
to receive government assistance surely flies in the face of
this holding, and creates a second-class citizenry.
---------------------------------------------------------------------------
\12\ This proposal has the strong support of the Commission on
Immigration Reform. See Commission on Immigration Reform, U.S.
Immigration Policy: Restoring Credibility, September 1994, at 170.
\13\ See ``Immigrant Citizens Reshape New York Politics'', New York
Times, March 10, 1996, pp. 1, 28 (noting the ``Idealistic Fervor Of the
New Citizen.'')
---------------------------------------------------------------------------
However, we oppose the affidavit of support as found in
section 203. First, this section imposes an indefinite
obligation on the part of the sponsor to support an immigrant;
while this obligation may terminate in 5 years (when the
immigrant could naturalize) or in 10 years (after the immigrant
has worked for 40 qualifying quarters), it could also extend
indefinitely if neither of these events occur. Certainly, in
the case of children, who may not naturalize until adulthood
and who would not likely work 40 qualifying quarters until well
over the age of majority, section 203 could impose an
obligation on sponsors for 30-40 years. While there is merit to
making sponsors primarily responsible for immigrants,
designating a specific duration for the affidavit of support
promotes certainty and fairness. The Commission on Immigration
Reform, the Administration, and outside commentators have all
endorsed this approach.14
---------------------------------------------------------------------------
\14\ See February 14, 1996 Letter from Deputy Attorney General
Jamie Gorelick to Chairman Hatch, p. 54; Commission Testimony at 5; and
Fix, Zimmerman, ``When Should Immigrants Receive Public Benefits,'' The
Urban Institute, Immigrant Policy Program, May 1995, at 15-16
(proposing 5-year sponsorship period).
---------------------------------------------------------------------------
In addition, section 203's requirement that sponsors
demonstrate an annual income equal to 125 percent of the
poverty line in order to bring in an immigrant is nothing less
than a back-door way of reducing legal immigration, and
threatens to turn our immigration system into the province of
the well-to-do. Its impact on certain sectors of our population
cannot be overstated; for example, requiring immigrant sponsors
to demonstrate an income that is 125 percent of the poverty
level would preclude approximately 40 percent of all Latinos
and 18 percent of Asians from sponsoring an immigrant into the
United States.15 Given the affidavit of support, public
charge, and deeming provisions that are already in the bill,
this requirement simply ``piles on,'' in a manner designed not
to protect immigrants or taxpayers, but to deny outright family
reunification, one of the cornerstones of our immigration
policy.
---------------------------------------------------------------------------
\15\ See March 1994 CPS.
---------------------------------------------------------------------------
We will also offer amendments to section 203 to address
these concerns.
C. Deeming--In addition to the bill's public charge and
sponsor responsibility provisions, section 204 of the bill
requires that 100 percent of the immigrant sponsor's income be
attributed to the immigrant in determining the immigrant's
eligibility for any federal means-tested benefit--including
those freely available to illegal immigrants--until the
immigrant has worked 40 qualifying quarters or naturalized.
Section 204 also provides that any immigrant already in the
United States is subject to deeming requirements for the first
5 years of his time here.
It is these deeming provisions, above all, that cause us to
oppose the bill. While we applaud the committee's decision not
to expressly bar legal immigrants from any government programs,
as did the Welfare Reform Conference Report, the bill's deeming
provisions will have the similar effect of excluding legal
individuals--who, it must be said again, pay taxes, serve in
our military, and contribute in myriad ways to society--from
virtually all means-tested government services for a minimum of
5 years, and maybe longer. 16 Unlike the public charge
provisions or the affidavit of support section, the deeming
rules in the bill will deny many legal immigrants any
government assistance, pure and simple.
---------------------------------------------------------------------------
\16\ We note that H.R. 2202, the House Immigration bill, placed
finite limits on many deeming requirements--e.g., spouses are subject
to deeming for 7 years, or until naturalization, whichever comes first;
and children are subject to deeming until they reach age 21 or
naturalize, whichever comes first.
---------------------------------------------------------------------------
The effects of the bill's deeming rules flow largely from
the fact that they require the full income of the immigrant
sponsor to be deemed to the immigrant for purposes of
determining immigrant eligibility for assistance. Clearly, some
of this income must go to the sponsor's--and his family's--own
needs; thus, in reality, the sponsor will not have the full
amount of his income to devote to the immigrant, and the income
deemed to the immigrant for purposes of determining immigrant
benefits eligibility will be in excess of that actually
available to the immigrant. 17
---------------------------------------------------------------------------
\17\ See March 12, 1996 Testimony of David A. Martin, General
Counsel, Immigration and Naturalization Service, before the Senate
Budget Committee, at 4, noting that ``[a]ttributing 100 percent of a
sponsor's income and resources to the sponsored immigrant does not take
into account the needs of the sponsor or the sponsor's family and is
inconsistent with current practice in the major entitlement programs.''
---------------------------------------------------------------------------
In the end, this approach denies government assistance to
the immigrant though neither the immigrant or the sponsor can
provide that assistance, and forces immigrant sponsors to
internalize for an indefinite period costs that they simply
cannot absorb. Under the bill, these include the costs of
educational assistance, nutritional assistance for children,
medical assistance, job training, housing assistance, energy
assistance, pensions for veterans, and others. While increased
sponsor and immigrant responsibility may be the laudable goal
of proponents of these rules, the end result will be that poor
immigrants with poor sponsors will not receive assistance that
should be available as a matter of public health, or that will
enable them to avoid welfare dependency in the future. This
makes no sense as a matter of public policy.
Consider the following hypothetical. An immigrant with an
income under the poverty line seeks a student loan. The
immigrant's spouse and sponsor, who was laid off after
sponsoring her husband into the United States and who has three
children with the immigrant, also has an income under the
poverty line. With 100 percent of the sponsor's income
attributed to the immigrant under the new rules, however, the
immigrant is deemed to have an income that makes him ineligible
for the loan. Because neither the immigrant nor the sponsor--
nor the two jointly--can pay the necessary tuition in light of
their other responsibilities, the immigrant receives no
assistance, and is denied the means to develop into a
productive member of society.
For another example, consider a legal immigrant, with three
siblings, who is in need of emergency surgery, and whose
parents and sponsors, while making enough money to render them
ineligible under the deeming rules, simply cannot afford the
substantial costs associated with the surgery, given their own
needs and the needs of their other children. While the bill
makes such services available to illegal immigrants, on the
grounds that denial of such services would be incompatible with
the public health, the new deeming rules would serve to deny
the legal immigrant such assistance.
Such situations could become all too common under section
204, and demand some flexibility in the deeming rules that bill
simply does not provide. We intend to offer amendments to this
section on the floor in an effort to add some balance and
common sense to this section.
D. Illegal Immigrants--Section 201 of the bill provides
that ``ineligible'' aliens--defined to include illegal
immigrants as well as a variety of immigrants with legal
status--while ineligible for the vast majority of benefits, are
eligible for certain types of assistance, on the grounds that
universal access to such services is essential in order to
preserve the public health and safety. One such program--
prenatal services for undocumented mothers--was added to this
list by the Committee pursuant to an amendment offered by
Senator Kennedy. The children of these mothers are American
citizens at birth and should be assured a healthy start on life
like any other American child. We applaud the Committee's
recognition that certain programs should be universally
available, and wish that the same understanding had resulted in
making these services available to legal immigrants as well.
One issue the Committee wisely did not address in this area
was public education for undocumented aliens. The Supreme Court
in Plyler v. Doe, 457 U.S. 202 (1982), held that States could
not deny illegal immigrant children a free public education.
While this holding was premised in part on the federal
government's plenary power over immigration and on equal
protection principles, the Court also relied heavily on the
policy implications of such a denial, noting ``the significant
social costs borne by our Nation when select groups are denied
the means to absorb the values and skills upon which our social
order rests.'' 457 U.S. at 221. Even Chief Justice Burger,
while dissenting from the Court's constitutional holding,
remarked that:
Were it [the Court's] business to set the Nation's
social policy, I would agree without hesitation that it
is senseless for an enlightened society to deprive any
children--including illegal aliens--of an elementary
education. I would agree that it would be folly--and
wrong--to tolerate creation of a segment of society
made up of illiterate persons, many having a limited or
no command of our language.
457 U.S. at 242 (Burger, C.J., dissenting).
While it may not be the Court's business to set national
policy in this area, it certainly is Congress' business to do
so, and any effort to deprive children--any children--of public
elementary and secondary education would be, in Chief Justice
Burger's words, ``foolish.'' The House immigration bill
provides States with the option of depriving illegal alien
children of a public education, and we urge our colleagues to
combat any effort in the Senate to do the same.
II. More Bad News: The Danger of Increased Employment Discrimination
In addition to denying legal immigrants an adequate safety
net, the bill also adds onerous new proof requirements which
will make it impossible for American citizens and legal
immigrants who are victims of discrimination to obtain redress.
There is widespread agreement that the employer sanctions
provisions of the 1986 act resulted in discrimination against
foreign looking and foreign sounding job applicants. A 1989 GAO
Report, a 1990 Bush Administration Task Force on IRCA related
discrimination, as well as recent reports from the Justice
Department's Office of the Special Counsel for Immigration-
Related Unfair Employment Practices have all documented this
pervasive problem.
In response, Congress in 1990 enacted a provision which
created a balance between the legitimate needs of employers to
verify eligibility of prospective employees, and the rights of
foreign looking and foreign sounding American citizens and
legal immigrants to be free from discrimination. Under current
law, there is a list of government approved documents that are
clearly displayed on the back of the employment verification
form. Once an applicant produces a document from this list, and
the document appears authentic, the employer is off the hook,
plain and simple, and cannot be sued for employer sanctions
violations.
Once the applicant or employee produces this document, and
it appears authentic, it is illegal under current law for the
employer to request additional or different documents from the
person. The purpose of this provision is to prevent employers
from harassing foreign looking and foreign sounding American
citizens and legal immigrants by requesting additional or
different documents as a condition of employment.
Unfortunately, employers have continued to discriminate
against foreign looking and foreign sounding people. For
example, the Justice Department has pursued a number of cases
against employers who have refused to hire applicants of Puerto
Rican descent unless they produced a green card. A naturalized
citizen of Middle Eastern descent who spoke with an accent was
fired for not complying with his employer's demand that he
produce a green card. When he explained that he was a United
States citizen, and produced a driver's license, social
security card and voter registration card, the employer refused
to accept them.
The motives of those who discriminate against foreign-
looking or foreign-sounding job applicants are often mixed.
Many claim that they do so purely out of a fear of employer
sanctions, and not because they intend to treat certain
Americans different from others. Whether these accounts are
true, the bottom line is that it is virtually impossible to
separate out the proper and improper motivations behind
employers' discriminatory action. The bill ignores this reality
and adds language in section 117 that would require a person
filing a discrimination claim to demonstrate that the employer
intended to discriminate on the basis of national origin or
citizenship. This provision would impose a burden that is
impossible to meet, and would exacerbate the already serious
problem of discrimination. Under this provision, for example,
employers who demand green cards from Puerto Ricans or
naturalized Americans can escape liability for their actions.
There is also widespread agreement that the problems of
discrimination are a function of employer concerns about the
widespread availability of fraudulent documents. The bill
addresses this problem in a number of constructive ways. For
example, section 116 reduces the number of acceptable documents
for establishing employment eligibility from 29 to six, and
there are other provisions to prevent the production of
fraudulent documents. It is unwise to attack discrimination by
giving employers license to discriminate further.
It is important to keep in mind whom the victims are. They
are American citizens and legal immigrants--law abiding people
who have been playing by the rules and are simply attempting to
make ends meet. In an era when we are attempting to promote
economic self-sufficiency, it is unwise to erect new barriers
to self-sufficiency.
III. Even More Bad News: Abandoning Our Tradition of Asylum for
Political Refugees
In addition to its other flaws, the bill imposes
unnecessary and harmful new bars to an individual's ability to
seek political asylum in the United States, and is contrary to
our most cherished traditions of providing safe haven to those
fleeing persecution.
Under current law, an individual claiming asylum may prove
his entitlement to this status before an immigration judge.
This bill instead requires individuals seeking to enter the
United States with false documents to establish a ``credible
fear of persecution'' before an asylum officer--in reality, a
low-level bureaucrat--before being eligible to apply for
asylum. In addition, before even being eligible to apply for
asylum, the person claiming asylum must prove that he used the
false documents to flee directly from a country where, if
returned, a significant danger of persecution remains. Failure
to meet these tests results in the exclusion of the individual
from the United States, and in many instances in his return to
the country of persecution.
These new provisions are both unreasonable and unnecessary.
First, the notion that a person fleeing persecution with
the aid of false documents should be subjected to a barrage of
new procedural requirements before being able even to apply for
that status ignores the fact that those fleeing from
persecution often need false documents to escape the country
that persecutes them. Indeed, America has consistently honored
the memory of Raoul Wallenberg, who saved countless lives
during the Holocaust by issuing unofficial travel documents to
individuals fleeing persecution. Under this bill, each of the
people helped by Wallenberg would, at the moment of entry into
the United States, after a long journey from persecution,
without counsel or other assistance, before a non-judicial or
quasi-judicial official, have to demonstrate that she (1) had a
``credible fear of persecution'' that caused her to leave; (2)
took a direct route to the United States in escaping
persecution; \18\ (3) used her false documents to get away; and
(4), if she were sent back, would face a ``significant'' danger
of further persecution. This approach represents a 180-degree
turn from our past.
---------------------------------------------------------------------------
\18\ This ``direct departure'' requirement is particularly
problematic given that a number of countries--including many in Asia or
Africa--do not have direct carrier routes to the United States, and
that a person seeking asylum in the United States may first have to
stop off in a country that does not have asylum laws or is equally
hostile to the escapee as his native country.
---------------------------------------------------------------------------
The bill's draconian approach to asylum seekers is also
unnecessary, and is a vestige of a time when the Immigration
and Naturalization Service was struggling to assert control
over a system run rampant. Less than two years ago, an
individual could arrive in the United States without proper
documentation, claim asylum, receive work authorization,
disappear into the interior, and avoid ever having the asylum
claim adjudicated. Needless to say, the rules in place at this
time encouraged and resulted in fraudulent applications, and
drove calls for the kind of measures included in this bill.
To its great credit, however, INS published regulations in
March 1995 that altered the asylum landscape. These regulations
denied work authorization to individuals claiming asylum, and
placed all asylum cases on a fast-track review that enables a
newly-expanded corps of immigration judges to adjudicate
virtually all claims within 180 days. With the elimination of
automatic work authorization and the guarantee of an
expeditious determination of asylum has come a 57 percent
reduction in asylum claims over the past year. Clearly, our
asylum system today creates little inducement for fraudulent
claims. In approving the asylum provisions in this bill,
however, the Committee has ignored recent developments and
taken steps that are wholly obsolete today.
The Department of Justice has not asked for these new
asylum provisions, and in fact opposes them on the grounds that
``absent smuggling or an extraordinary migration situation,
[it] can handle asylum applications for excludable aliens under
our regular procedures.'' \19\ Moreover, the United Nations
High Commissioner for Refugees (UNHCR) has expressed serious
concerns that the new provisions also are inconsistent with
U.S. obligations under international law since the bill lacks
the minimal procedural safeguards to prevent the mistaken
return of a genuine refugee to certain persecution. In short,
UNHCR ``fear[s] that many bona fide refugees will be returned
to countries where their lives or freedom will be threatened''
if the new bars to asylum become law. \20\ It is UNHCR's
further concern that any action taken by the United States--
long a leader in providing relief to victims of persecution--to
restrict asylum will be taken as a signal by other countries
seeking to do the same. The Committee has failed to consider
this important ripple effect of its action.
---------------------------------------------------------------------------
\19\ See February 14, 1996 Letter from Deputy Attorney General
Jamie Gorelick to Chairman Hatch, p. 46.
\20\ Letter from Anne Willem Bijleveld, Representative of UNHCR, to
Chairman Hatch, March 6, 1996, at 1.
---------------------------------------------------------------------------
In conclusion, we note that, in addition to the bars on
people who travel without valid documents, the bill restricts
the ability to obtain asylum in a number of other ways. For
example:
Section 141 precludes a person from applying
for asylum--and renders him excludable from the United
States--if he cannot prove a ``credible fear of
persecution,'' and (1) has lived in the United States
for less than 2 years without ever being formally
``admitted'' into the United States; (2) has been
interdicted at sea; or (3) has fled to the United
States as a result of an ``extraordinary migration
situation.''
Section 142 broadly restricts judicial review
of exclusion orders based on the individual's ability
to demonstrate a credible fear of persecution or any of
the other criteria required of an asylee, thereby
eliminating most judicial oversight over the process
and denying the federal judiciary its historic function
of reviewing the implementation and execution of
immigration laws.
As the Administration notes, these and the other provisions of
the bill relating to asylum are simply not consistent ``with a
fair and humanitarian immigration policy.'' \21\
---------------------------------------------------------------------------
\21\ See February 14, 1996 Letter from Deputy Attorney General
Jamie Gorelick to Chairman Hatch, p. 22.
---------------------------------------------------------------------------
IV: Good News: Cracking Down on Alien Smuggling, Sweatshops, and Other
Criminal Acts
While we have focused thus far on the flaws in this bill--
flaws which were considerable enough to cause us to oppose it--
there is much in the legislation to recommend it as well. In
particular, we are gratified that the bill undertakes long-
needed reform of the criminal enforcement scheme for
immigration-related crimes.
There is unanimous agreement that under current law, the
penalties for all types of immigration offenses--alien
smuggling, document fraud, and sweatshop offenses--are simply
too weak, and do not adequately deter or punish these offenses.
As a result, the bill establishes a tough, carefully calibrated
sentencing scheme for these offenses. This system establishes
tougher sentences, ensures longer sentences for the most
violent or flagrant offenders, provides additional sentencing
enhancements for repeat offenders, and provides limited but
much needed flexibility for prosecutors and courts in certain
cases to effectively perform their jobs of dispensing justice.
The sentencing structure established in this bill is the
product of careful consultation with various experts--career
prosecutors at the Department of Justice and United States
Attorney's offices nationwide, Republicans and Democrats alike,
people who are in the trenches every day prosecuting alien
smugglers, sweatshop operators and manufacturers of false
passports, and sentencing experts at the non-partisan
Sentencing Commission. As a result of the bipartisan
involvement of various groups, these criminal provisions were
adopted by unanimous consent of the committee.
In the alien smuggling context, the bill, in addition to
raising the statutory penalties substantially, provides a
series of specific directives to the Sentencing Commission that
will ensure that the defendant in the typical alien smuggling
case receives a sentence that is at least 3-4 times longer than
the current sentence. In addition, there are provisions which
guarantee that alien smugglers who use a firearm or otherwise
injure or endanger the lives of others, as well as those who
are repeat offenders, receive substantial additional sentencing
enhancements. There are also provisions that ensure that the
smuggler who transports 100 undocumented people across the
country for profit is treated substantially differently--and
much harsher--than the person who smuggles his mother or father
into the country to unify his family.
Alien smuggling and involuntary servitude frequently go
hand in hand, as aliens are smuggled into the country and then
put to work in sweatshop conditions at slave wages in order to
pay off the massive debt. This exploitation of aliens by
unscrupulous sweatshop operators is on the rise, as tragic
cases have documented in New York City and Los Angeles. The
bill recognizes this sad reality, and doubles the statutory
penalties for sweatshop operators. The bill also provides
directives to the Sentencing Commission that will ensure that
the most egregious offenders receive the stiffest sentences.
The bill establishes a sentencing structure in document
fraud offenses which is similar to alien smuggling offenses. In
addition to raising the statutory maximum penalties
substantially, the bill contains specific provisions that
guarantee that the most serious and repeat offenders receive
the largest sentencing enhancements and the longest sentences.
Moreover, the sentences for document fraud violations were
already raised substantially in 1995. When combined with the
additional enhancements of this bill, the net result is that
prosecutors will now have tough, effective tools in their
battle against document fraud.
Criminal alien tracking center
Another way that criminal matters can receive greater
attention in immigration law enforcement is the Criminal Alien
Tracking Center (Law Enforcement Support Center) established by
the INS Commissioner under the authority of section
242(a)(3)(A) of the Immigration and Nationality Act (8 U.S.C.
1252(a)(3)(A)) to assist Federal, State and local law
enforcement agencies in identifying and locating aliens
arrested or convicted of serious criminal offenses. We
encourage the center, located in South Burlington, VT, to
continue a close and cooperative working relationship with
Federal, State and local law enforcement agencies in
identifying and locating aliens who may be subject to
deportation by reason of their criminal records.
To improve the coordination of tracking criminal aliens, we
recommend that the Center be designated as the national
repository for all INS fingerprint records relating to criminal
aliens. Information from the fingerprints would be most
accessible if the center stored this information in an AFIS/
IDENT database with a link to FBI databases. The Center should
also serve as the repository for INS ``A-files'' (the INS alien
registration number assigned to cases) relating to aggravated
felons and aliens listed in the NCIC Deported Felon File.
Locating these files at the Tracking Center will improve their
accessibility to INS agents and U.S. Attorney offices
throughout the United States.
Paul Simon.
Ted Kennedy.
Patrick Leahy.
XIII. MINORITY VIEWS OF SENATORS KENNEDY AND SIMON
While the minority views joined by ourselves and Senator
Leahy reflect most of our positions on this bill, we also write
separately to express our position on an issue that has divided
both supporters and opponents of this legislation: the issue of
verification of employment eligibility. The majority report
fails to emphasize adequately the importance of developing a
reliable means in the future for determining who is and is not
eligible to work in the United States.
We strongly believe that notwithstanding claims that many
immigrants come to the United States illegally in order to
receive government assistance, the main incentive for illegal
immigrants is jobs, pure and simple.
Over the past 15 years, Congress created two blue-ribbon
commissions to provide recommendations for controlling illegal
immigration. In both instances--with the Select Commission on
Immigration and Refugee Policy in 1981 (chaired by Father Ted
Hesburgh) and the current Commission on Immigration Reform
(chaired by the late Representative Barbara Jordan)--the
Commissions concluded that the United States must eliminate the
job magnet for illegal immigrants by making it illegal for
employers to hire them.
In 1986, Congress took this step in the Immigration Reform
and Control Act of 1986. For the first time in our history, it
was made illegal for an employer knowingly to hire illegal
immigrants, and employer sanctions were established to penalize
those employers who violated this new law.
The Immigration Reform and Control Act of 1986 also
provided protections against employment discrimination in
response to concerns that employers would respond to employer
sanctions by engaging in discriminatory employment practices.
According to the U.S. General Accounting Office and several
other independent studies, discriminatory practices resulting
from employer sanctions include: employers avoiding job
applicants whose surnames, appearance, or speech accents
suggest that they might be immigrants; employers selectively
checking the documents only of ``foreign looking'' employees or
job applicants; employers establishing ``U.S. citizens only''
policies, thereby discriminating against legal residents; and
employers requiring that employees present specific documents,
such as requiring that any Latino or Asian employee present a
``green card'' or other INS document.
The 1986 act required employers to check the documents of
all persons hired after its enactment in order to verify their
eligibility. In response to the Act's requirements, the
Immigration and Naturalization Service established a list of 29
different documents which employers were required to accept
from job applicants to prove their identity and eligibility to
work in the United States. This list was included as part of a
new form--the ``I-9''--which every employer is required to
complete for each new hire. As long as the new hire produces
the required document or documents listed on the I-9, and each
document provided ``reasonably appears on its face to be
genuine,'' the employer is absolved of any liability if the
individual turns out to be an unauthorized worker. 22
---------------------------------------------------------------------------
\22\ See section 274A(b)(1) of the Immigration and Nationality Act
(8 U.S.C. 1324a).
---------------------------------------------------------------------------
the problem: document fraud
While there was a decline in levels of illegal immigration
immediately after passage of the 1986 reforms, illegal
immigration is on the rise once again. It is far too easy for
illegal immigrants to get jobs illegally by providing employers
with false documents.
The Jordan Commission observed that ``reducing the
employment magnet is the linchpin of a comprehensive strategy
to reduce illegal immigration.'' The Commission went on to
state:
The ineffectiveness of employer sanctions, prevalence
of fraudulent documents, and continued high numbers of
unauthorized workers, combined with confusion for
employers and reported discrimination against
employees, have challenged the credibility of current
worksite enforcement efforts. 23
---------------------------------------------------------------------------
\23\ Commission on Immigration Reform, U.S. Immigration Policy:
Restoring Credibility, September 1994, p. xii.
While the illegal immigrant population is still lower today
than it was before passage of immigration reforms in 1986, the
population is growing once again. INS estimates that in 1992,
there were 3.3 million illegal immigrants in the country
compared with 4.7 million when the Immigration Reform and
Control Act was enacted in 1986. The illegal immigrant
population had dropped to just over 2 million following passage
of the 1986 Act due in large part to the legalization of
hundreds of thousands of formerly undocumented immigrants.
While over one million illegal immigrants are estimated to
enter the United States each year, an estimated 300,000 end up
remaining permanently as illegal immigrants, according to INS.
24
---------------------------------------------------------------------------
\24\ Robert Warren, Estimates of the Unauthorized Immigrant
Population Residing in the United States, By Country of Origin and
State of Residence: October 1992, Immigration and Naturalization
Service, April 29, 1994.
---------------------------------------------------------------------------
The Response: Pilot Programs under Congressional Scrutiny
The Committee agreed that something must be done to help
employers determine reliably who can and cannot work in the
United States. The committee voted 11 to 5 in favor of a
Kennedy-Simpson amendment (sections 111 through 113) to require
the Justice Department to conduct ``several'' pilot programs
over the next three years to test new and better ways of
verifying employment eligibility. The amendment set clear
standards for these pilot programs related to privacy, minimal
impact on business, prevention of discrimination, accuracy and
other criteria. Because of concerns that the pilot programs
could become so large as to be tantamount to implementing a
national program, the Kennedy-Simpson amendment required the
pilots to be tested only locally or regionally.
As a key safeguard, an important element of the Kennedy-
Simpson amendment was that the President would be required to
seek congressional approval before implementing any new or
permanent approach beyond the authorized 3-year pilot programs.
It was also our intention, as supporters of the amendment,
that any new approach that is developed be accurate and
reliable. We intend that it reliably verify employment
authorization within five business days in 99 percent of all
inquiries. It must also provide an accessible and reliable
process for authorized workers to examine the contents of their
records and correct errors within ten business days.
Any new approach also must contain safeguards against
unlawful discrimination. These include, for example, advising
all employees that they are being verified by computer and
providing a list of resources available to them in the event
that discrimination occurs; and monitoring employer behaviors
(for informational purposes, and not for enforcement) in a
manner which provides policy-makers and others with information
about how the system will be used.
In short, while we opposed the bill's initial proposal
giving the President blanket authority in eight years to
implement a nationwide verification system, we believe that
pilot programs, measured against a series of strict criteria
and subject to Congressional review prior to implementation of
a nationwide system, provides the proper balance between
elimination of the jobs magnet, on one hand, and protection of
the values we as Americans all share, on the other.
Paul Simon.
Ted Kennedy.
XIV. MINORITY VIEWS OF SENATOR LEAHY
This bill was improved by amendment during the Judiciary
Committee's deliberations, but much still needs to be done. I
join in the minority views and add these additional comments.
border fees
I am delighted that the committee voted overwhelmingly to
strike border crossing fees from this bill. I worked closely
with Senators Kyl and Abraham on this issue and commend them on
their efforts.
Border crossing fees are a bad idea. They are bad for
residents of border States, for visitors to border States and
bad for business.
They are not a ``user'' fee. Instead, they would burden
residents, tourists, business and commerce in certain States in
order to benefit the rest of the country. That is the wrong
approach to our national immigration problem. The cost of these
efforts ought to be born by the nation as a whole and not fall
disproportionately on border States.
As I explained during our committee debate, calling border
crossing fees ``user'' fees is like saying that the driver
whose vehicle speed was tested by radar and found to be in
accordance with the speed limit ought to pay the State Police a
$1 fee for the ``use'' of the radar gun.
The problem of illegal immigration along our Nation's
southern border has led to significantly increased enforcement
and inspection efforts over the past 3 years. If we need more
inspection services and more border patrol agents, let us
authorize and pay for them as a nation. The Violent Crime
Control and Law Enforcement Act of 1994 added extraordinary
resources to this effort. This bill augments them further.
If a State tried to impose a border crossing fee, it would
likely be declared unconstitutional as an unreasonable burden
on interstate commerce and an infringement on the right to
travel. Similarly, we in the Federal Government should not
venture down this road. If the proposal were to impose border
crossing fees between States to pay for INS and other
obligations of the Federal Government, there would be a
national uproar.
Border crossing fees should be understood to be equally
offensive when limited to States with international borders.
None of us should want to impose this burden on the
economy. Legal visitors from Canada and Mexico spend nearly $10
billion a year in the United States. If we tax these visits,
there will be fewer dollars spent in the U.S. and might be
fewer visits. There will be further delay and congestion at the
borders and travel to the United States will be made more
difficult.
Vermont businesses warn me that a border crossing fee could
cut off a portion of the $120 million a year spent in the Green
Mountain State by Canadian visitors. Vermont ships $2.4 billion
in goods and services to Canada annually, which accounts for 75
percent of the State's exports. There is no reason to think
that Canada would tolerate our imposition of border crossing
fees without responding by imposing its own fees. It makes
little sense to have worked so hard to remove trade barriers
only to reinvent them as border fees.
I hope that the action by the Judiciary Committee on this
ill-conceived idea will put an end, once and for all, to the
notion of border crossing fees as a way to finance INS
activities.
criminal alien tracking center
I commend my colleagues for their recognition of the
contribution that is being made to immigration law enforcement
by the Law Enforcement Support Center in South Burlington,
Vermont (``LESC'). This is among the most significant
capacities being developed to assist Federal, State and local
law enforcement to deal more effectively with criminal aliens.
Improving the identification and expediting the deportation of
criminal aliens responsible for violent crimes are goals on
which there is universal agreement.
The Violent Crime Control and Law Enforcement Act of 1994
authorized the Law Enforcement Support Center. Last September,
I had a colloquy on the Senate floor with the Senate
Appropriations Subcommittee Chairman clarifying that the
Senate-passed appropriations bill allowed the LESC to continue
to receive its authorized funding.
This is the only on-line national database available to
identify criminal aliens. It is a valuable and essential asset
for improving our national immigration enforcement effort. The
LESC provides local, State and Federal law enforcement agencies
with 24-hour access to data on criminal aliens. By assisting in
the identification of these aliens, the LESC allows law
enforcement agencies to expedite deportation proceedings
against them.
In its first year of operation, the LESC identified over
10,000 criminal aliens as aggravated felons. After starting up
with a link to law enforcement agencies in one county in
Arizona, the LESC expanded its coverage to that entire state.
The LESC is expected to be on-line with California, Florida,
Illinois, Iowa, Massachusetts, New Jersey, Texas and
Washington, as well as Arizona this year.
The Law Enforcement Support Center deserves our full
support.
national employment identification verification
I remain concerned that the national employment
verification system included in the bill, while improved, still
extends too far, is too invasive and contains too few privacy
protections. Senator Kennedy is to be commended for the effort
he is making in this regard and for the progress being
achieved. The Kennedy-Simpson amendment is an improvement over
the provisions included in the bill presented to the Committee.
I hope that we can do better.
None of us want to see a national ID card. None of us want
the Federal Government imposing costly burdens on our State and
local authorities without providing the funding and other
assistance necessary to comply with the federal mandate. None
of us want the Government creating vast data banks that are not
secure. We need to be sure that protections at least as strong
as those contained in the Privacy Act apply to records on
individuals held by the Government. I want to be sure that
violations of privacy and misuse of personal information are
effectively deterred and that any violations of privacy rights
that might occur are detected and remedied.
public assistance
As indicated in the minority views, I am not satisfied with
the bill's provisions regarding public assistance. For example,
the attribution of a sponsor's resources to legal immigrants
for purposes of nutrition, education and health programs will
yield results too harsh and short-sighted to be acceptable.
Senators Kennedy and Simon have made a number of suggestions to
improve these provisions in which I join.
The WIC program, for example, ought to be available to
children. For every dollar spent on WIC, three dollars are
saved in future medical costs. Regardless of citizenship status
of their mothers, children born in this country will be
American citizens. Further, school budgets and school
administrators are already stretched to the limit without
imposing upon them the administrative burden of additional
paperwork to ascertain immigrant status of tens of millions of
school children before they can participate in child nutrition
programs. Sponsor ``deeming'' may be sensible with
bureaucracies able to handle the added complexity, but these
additional requirements have no place in nutrition programs.
While the bill would correctly allow nutrition program
benefits to be received by the children of illegal immigrants,
it would deny them through ``deeming'' to the children of legal
immigrants. Even the previous Senate-passed welfare bill and
the welfare conference report exempted child nutrition and WIC
from their onerous ``deeming'' provisions. Let us not punish
immigrants' children and create a class of undernourished and
poorly nourished infants and children.
In addition, I remain concerned with the provisions of the
bill that would create a rigid rule on so-called ``public
charges.'' The bill provides no mechanism by which an immigrant
could ever terminate the status of public charge. The bill
would penalize legal immigrants who are not wealthy and begin
their lives in this country as members of the working poor. It
is too quick to label people as public charges for utilizing
the same public assistance that many Americans need to get on
their feet. The bill treats each situation as static,
irretrievable and irredeemable.
Unlike the bill, I believe that people can work hard and
become contributing citizens. Under the bill, even if an
immigrant becomes successful, pays taxes, invents something, or
starts a company that employs hundreds of other Americans and
becomes a shining realization of the American Dream, there is
no way to terminate the status of public charge.
Because people can succeed--even people who may need a
little help at some time or another due to illness, or the need
for additional education--I believe that our law ought to
encourage and recognize that possibility. Thus, I suggest that
the law provide that people who achieve self-sufficiency no
longer be labeled public charges.
In addition, I am disturbed that the definition of public
charge goes too far in including a vast array of programs none
of us think of as welfare. I understand the desire to prevent
immigrants from coming to this country in order to become
perpetual welfare recipients. I do not believe that is why
people do come and struggle and work to make a better life for
their families, but I recognize that this perception exists. If
we want to make the acceptance of cash payment over an extended
period of time under SSI, AFDC or State general assistance
programs--what most people mean when they refer to welfare--a
basis for imposing the remedy of deportation, let the Congress
carefully construct such provisions, not the overreaching bill
approved by the Committee.
The bill would affect the working poor who are striving
against difficult odds to become self-sufficient. The bill
includes the receipt of medical services and nutritional
programs as bases for disqualification. It includes a catch-all
for programs that are means tested but which the bill has not
identified. Do the supporters of this bill really mean to
include Headstart, child care, student loans, Stafford loans,
Pell grants, and job training as public assistance that can
accumulate to label immigrants public charges? Do they mean to
include federally subsidized programs as well as those
administered by the Federal Government? Do they mean to include
tax credits for the working poor? The bill is unnecessarily
uncertain and will yield harsh and idiosyncratic results that
no one should intend. It needs to be fixed before it deserves
our support.
Asylum
We also need to reconsider the restrictions on applications
for political asylum proposed in this bill. During the
committee's deliberations I offered an amendment to strike
provisions that would alter our asylum process, but failed on a
tie vote.
The bill is extreme and fails to reflect the unfortunate
reality of oppression in other parts of the world. The bill
goes too far and sends the signal that ``direct'' travel to the
United States is an essential element for an asylum claim. To
require a refugee to travel directly from his or her country to
ours in order to be allowed even to apply for asylum ignores
the reality that many refugees must escape to a neighboring
country before they can travel to American.
There is the recent example of Fidel Castro's daughter, who
defected with a phony passport and disguised as a Spanish
tourist to arrive here after traveling through Spain. For every
well-known refugee, there are tens of less famous but deserving
refugees from oppressive regimes.
Raoul Wallenberg received international recognition for
rescuing tens of thousands from Nazi persecution by issuing
Swedish identity papers and arranging transport to Sweden.
Oskar Schindler saved many lives by securing false documents
and identities. As many as 10,000 Jews fled the Holocaust
through Asia with the noble assistance of Chiune Sugihara, a
Japanese diplomat who disobeyed his government and issued them
visas. Do we really mean to prohibit the claims of those who,
like the beneficiaries of the courageous work of Oskar
Schindler, Raoul Wallenberg and Chiune Sugihara during World
War II, needed false documents to survive? I hope not.
I am confident that consideration of asylum claims can take
false documents into account without making them a barrier to
full review. The asylum provisions in the bill would place
undue burdens on unsophisticated refugees who are truly in need
of sanctuary but may not be able to explain their situation to
an overworked asylum officer.
The bill would establish summary exclusion procedures and
invest low-level immigration officers with unprecedented
authority to deport refugees without allowing them a fair
opportunity to establish a valid claim to asylum. Even before
being permitted to apply for asylum, refugees who flee
persecution without valid documents, would be met with a series
of procedural hurdles virtually impossible to understand or
overcome.
This is a radical departure from current procedures that
afford an asylum hearing before an immigration judge during
which an applicant may be represented by counsel, may cross-
examine and present witnesses, and after which review is
available by the Board of Immigration Appeals. Such hearings
have been vitally important to refugees who may face torture,
imprisonment or death as a result of an initial, erroneous
decision by an INS official.
Indeed, human rights organizations have documented a number
of cases of people who were ultimately granted political asylum
by immigration judges after the INS denied their release from
INS detention for not meeting a ``credible fear'' standard.
Under the summary screening proposed in the bill, these
refugees would have been sent back to their persecutors without
any opportunity for a hearing.
Under international law, an individual may be denied an
opportunity to prove an asylum claim only if the claim is
``manifestly unfounded.'' This bill would establish a summary
screening mechanism that utilizes a ``credible fear'' standard
without meaning or precedent in international law. These
summary exclusion provisions have been criticized by
international human rights organizations and the United Nations
High Commissioner for Refugees.
Furthermore, the proposed legislation would deny the
Federal courts their historic role in overseeing the
implementation of our immigration laws and review of individual
administrative decisions. The bill would allow no judicial
review whether a person is actually excludable and would create
unjustified exceptions to rulemaking procedural protections
under the Administrative Procedure Act. These proposals thereby
portent a fundamental change in the role of our coordinate
branches of Government and a dangerous precedent.
Besides being fundamentally unfair to a traumatized and
fatigued refugee, who would be allowed no assistance and no
interpreter, the proposed summary screening process would
impose a burdensome and costly diversion of INS resources. In
1995 for example, only 3,287 asylum seekers arrived without
valid documents--hardly the tens of thousands purported to
justify these changes. The bill would require that a phalanx of
specially-trained asylum officers be created and posted at
airports, sea ports and other ports of entry across the country
to be available to conduct summary screenings at the border.
There is simply no need to divert these resources in this way
when the asylum process has already been brought under control.
In fact, the President reformed the asylum process in 1994.
Since then, annual applications have greatly decreased, from
approximately 125,000 a year to 54,000 and they are being
processed in a timely fashion. Only approximately 20 percent
are being granted. There are no exigent circumstances that
require this nation to turn its back on its traditional role as
a refuge from oppression and to resort to summary exclusion
processes. Neither the Department of Justice nor the INS
support these provisions or believe them necessary.
Patrick Leahy.
XV. MINORITY VIEWS OF SENATOR FEINGOLD
The bill reported by the Senate Judiciary Committee made
substantial improvements over the measure originally brought
before the Committee. Nevertheless, it contains some
fundamental flaws that compelled me to cast my vote against
this legislation.
First and foremost, however, I want to note the importance
of a key decision of the Judiciary Committee to adopt by a 12-
to-6 vote the bipartisan motion offered by Senators Abraham,
Simon, DeWine, Specter and myself to split the proposed
immigration reform legislation into two separate measures, one
dealing with questions relating to legal immigration and the
other dealing with illegal immigration. The House of
Representatives took similar action when it voted 238 to 183 to
strike provisions relating to legal immigration from its
immigration reform legislation.
As originally presented to the Judiciary Committee, legal
and illegal immigration reform proposals were treated as if
they dealt with the same problems. That is simply not true.
Much of the historical growth and development of our great
Nation can be attributed to immigration policies which have
allowed individuals from many backgrounds to come to America,
to seek to build better futures for themselves and their
families. This melting pot of cultures, traditions and
backgrounds has contributed to the strength of our nation and
it has long represented a source of great pride for Americans.
I oppose efforts to close these doors to legal immigrants.
At the same time, however, illegal immigration is a serious
problem and a paramount issue in some areas of the country.
Congress has the responsibility to strengthen our border
security and augment other efforts to prevent undocumented
persons from unlawfully entering our country or remaining
without legal authority.
There was broad agreement within the Judiciary Committee
about the need to increase border enforcement efforts and to
impose swift and strong penalties against those who attempt to
enter the United States by unlawful means. S. 269 authorizes
the hiring over 4,500 new Border Patrol agents over the course
of the next five years. This massive increase in personnel will
nearly double the existing number of Border Patrol agents under
the jurisdiction of the INS. I was therefore pleased that an
amendment I offered was adopted by the committee which provides
that these new personnel will be hired and trained pursuant to
appropriate standards of law enforcement. The men and women
hired to fill these positions should receive appropriate
training to confront the enormous challenges of controlling
this nation's borders. My amendment was drafted with the
cooperation of the Department of Justice and INS, and will help
ensure a professionally trained expansion of the Border Patrol.
In addition to increasing the strength of the Border
Patrol, S. 269 provides additional enforcement tools to the
Department of Labor and the U.S. Customs Service to assist in
the efforts of these agencies in stemming the tide of illegal
immigration. In regard to criminal sanctions, S. 269 contains
language, offered by Senator Kennedy, to enhance the penalties
for virtually all forms of alien smuggling and document fraud
as well as related offenses. Additionally, the language
provides stiff penalties for those individuals who operate
sweatshops which force people, many in this country illegally,
to work in often inhumane conditions for minimal compensation.
I am pleased that this important amendment has been included in
this legislation.
Unfortunately, while this legislation contains provisions
that I support to strengthen our efforts at preventing illegal
entry into our country, it also calls for the development of
what is intended to lead to a massive ``national worker
verification'' system that would require millions of U.S.
citizens to have their identities verified by the Federal
Government every time they apply for a new job or government
assistance. This proposal is opposed by a broad coalition of
groups, ranging from the National Federation of Independent
Business, the National Association of Manufacturers to the
National Council of La Raza and the American Civil Liberties
Union.
Recognizing that the proper way to combat illegal
immigration is to target those who break our laws and not
impose burdens upon law-abiding citizens and businesses,
Senator Abraham and I offered a bipartisan amendment to strike
the worker verification proposal and replace it with stronger
enforcement and penalties for those who overstay their legal
visas.
The Abraham-Feingold approach was aimed at targeting the 2
percent of the population here illegally--not the other 98
percent of the population. It seems both unnecessary and
inappropriate to turn our Nation's employers into a quasi-
internal border patrol, charged with the responsibility of
rooting illegal immigrants out of an enormous American
workforce. We should not be promoting a system that would
require every employer to go through a burdensome, onerous and
potentially expensive process of dealing with a Federal
bureaucrat every time they consider a job application. Nor
should average Americans be forced to have their identity
verified by a government bureaucrat in Washington, DC, every
time they apply for a job or seek a student loan.
While employers are currently required to ask potential
employees for documentation to establish their identity, the
new verification system envisioned under this legislation would
create a massive, new system to be established and navigated by
employers, job seekers and virtually every American who applies
for some form of government assistance.
Although the committee bill was modified to create a pilot
program, it is clearly intended to lead to a national worker
verification system--a step which I think is unwise. Although
the committee accepted the provisions of the Abraham-Feingold
amendment which focused upon strengthening enforcement efforts
against those who overstay their visas, the committee
unfortunately deadlocked, 9 to 9, on the portions of the
Abraham-Feingold amendment which would have deleted the worker
verification provisions entirely.
Moreover, I am also deeply concerned by provisions in S.
269 which require the development of uniform Federal birth
certificates. Again, although the original provisions were
changed by the committee to eliminate the requirement that
individuals personalize their birth certificates and driver's
licenses with a fingerprint or ``other biometric data'', I am
concerned that the bill continues to represent a tremendous
unfunded mandate for local and state agencies responsible for
issuance of birth certificates and driver's licenses.
Finally, while many of the law enforcement and criminal
sanction provisions of this bill are reasonable, targeted
responses to legitimate problems, I am unable to support
others. In particular, I oppose the expansion of the death
penalty as included in the bill. I also am troubled by aspects
of ``anti-terrorism'' provisions particularly those which allow
aliens to be excluded for a category of speech which includes
``racial vilification''. Current law (8 U.S.C. 1182(a)(3)(B))
provides the Attorney General with the authority to exclude
aliens who have engaged in terrorist activity, or where
reasonable grounds exist to believe that an alien is likely to
engage in terrorist activity after entry into the United
States. The existing standard is based upon the conduct of the
alien and provides the Attorney General with the powers to
protect against terrorist threats. Expansion of this authority
into new areas poses issues of constitutional concern that
should not be ignored.
In conclusion, while I am unable to support the bill
reported by the committee, I do support many provisions in the
bill and I am hopeful that when the full Senate considers this
legislation, improvements will be made that will transform the
legislation into a sensible, targeted approach focused upon
those who break our laws, not those who abide by them.
Russ Feingold.
XVI. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 605, as reported, are shown as follows: existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
UNITED STATES CODE
* * * * * * *
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
* * * * * * *
CHAPTER 25--COUNTERFEITING AND FORGERY
Sec.
471. Obligations or securities of United States.
* * * * * * *
505. Seals of courts; signatures of judges or court officers.
[506. Seals of departments or agencies.]
506. Seals of departments or agencies.
507. Ship's papers.
508. Transportation requests of Government.
509. Possessing and making plates or stones for Government
transportation requests.
[Sec. 506. Seals of departments or agencies
[Whoever falsely makes, forges, counterfeits, mutilates, or
alters the seal of any department or agency of the United
States; or
[Whoever knowingly uses, affixes, or impresses any such
fraudulently made, forged, counterfeited, mutilated, or altered
seal to or upon any certificate, instrument, commission,
document, or paper, of any description; or
[Whoever, with fraudulent intent, possesses any such seal,
knowing the same to have been so falsely made, forged,
counterfeited, mutilated, or altered--
[Shall be fined not more than $5,000 or imprisoned not more
than five years, or both.]
(a) Whoever--
(1) falsely makes, forges, counterfeits, mutilates,
or alters the seal of any department or agency of the
United States, or any facsimile thereof;
(2) knowingly uses, affixes, or impresses any such
fraudulently made, forged, counterfeited, mutilated, or
altered seal or facsimile thereof to or upon any
certificate, instrument, commission, document, or paper
of any description; or
(3) with fraudulent intent, possesses, sells, offers
for sale, furnishes, offers to furnish, gives away,
offers to give away, transports, offers to transport,
imports, or offers to import any such seal or facsimile
thereof, knowing the same to have been so falsely made,
forged, counterfeited, mutilated, or altered,
shall be fined under this title, or imprisoned not more than 5
years, or both.
(b) Notwithstanding subsection (a) or any other provision
of law, if a forged, counterfeited, mutilated, or altered seal
of a department or agency of the United States, or any
facsimile thereof, is--
(1) so forged, counterfeited, mutilated, or altered;
(2) used, affixed, or impressed to or upon any
certificate, instrument, commission, document, or paper
of any description; or
(3) with fraudulent intent, possessed, sold, offered
for sale, furnished, offered to furnish, given away,
offered to give away, transported, offered to
transport, imported, or offered to import,
with the intent or effect of facilitating an unlawful alien's
application for, or receipt of, a Federal benefit, the
penalties which may be imposed for each offense under
subsection (a) shall be two times the maximum fine, and 3 times
the maximum term of imprisonment, or both, that would otherwise
be imposed for an offense under subsection (a).
(c) For purposes of this section--
(1) the term ``Federal benefit'' means--
(A) the issuance of any grant, contract,
loan, professional license, or commercial
license provided by any agency of the United
States or by appropriated funds of the United
States; and
(B) any retirement, welfare, Social Security,
health (including treatment of an emergency
medical condition in accordance with section
1903(v) of the Social Security Act (19 U.S.C.
1396b(v))), disability, veterans, public
housing, education, food stamps, or
unemployment benefit, or any similar benefit
for which payments or assistance are provided
by an agency of the United States or by
appropriated funds of the United States;
(2) the term ``unlawful alien'' means an individual
who is not--
(A) a United States citizen or national;
(B) an alien lawfully admitted for permanent
residence under the Immigration and Nationality
Act;
(C) an alien granted asylum under section 208
of such Act;
(D) a refugee admitted under section 207 of
such Act;
(E) an alien whose deportation has been
withheld under section 243(h) of the
Immigration and Nationality Act; or
(F) an alien paroled into the United States
under section 215(d)(5) of such Act for a
period of at least 1 year, and
(3) each instance of forgery, counterfeiting,
mutilation, or alternation shall constitute a
separate offense under this section.
* * * * * * *
CHAPTER 47--FRAUD AND FALSE STATEMENTS
* * * * * * *
Sec. 1028. Fraud and related activity in connection with identification
documents
(a) Whoever, in a circumstance described in subsection (c)
of this section--
* * * * * * *
[(b) The punishment for an offense under subsection (a) of
this section is--
[(1) a fine of not more than $25,000 or imprisonment
for not more than five years, or both, if the offense
is--
[(A) the production or transfer of an
identification document or false identification
document that is or appears to be--
[(i) an identification document
issued by or under the authority of the
United States; or
[(ii) a birth certificate, or a
driver's license or personal
identification card;
[(B) the production or transfer of more than
five identification documents or false
identification documents; or
[(C) an offense under paragraph (5) of such
subsection;
[(2) a fine of not more than $15,000 or imprisonment
for not more than three years, or both, if the offense
is--
[(A) any other production or transfer of an
identification document or false identification
document; or
[(B) an offense under paragraph (3) of such
subsection; and
[(3) a fine of not more than $5,000 or imprisonment
for not more than one year, of both, in any other
case.]
(b)(1)(A) An offense under subsection (a) that is--
(i) the production or transfer of an identification
document or false identification document that is or
appears to be--
(I) an identification document issued by or
under the authority of the United States; or
(II) a birth certificate, or a driver's
license or personal identification card;
(ii) the production or transfer of more than five
identification documents or false identification
documents; or
(iii) an offense under paragraph (5) of such
subsection (a);
shall be punishable under subparagraph (B).
(B) Except as provided in paragraph (4), a person who
violates an offense described in subparagraph (A) shall be
punishable by--
(i) a fine under this title, imprisonment for not
more than 10 years, or both, for a first or second
offense; or
(ii) a fine under this title, imprisonment for not
more than 15 years, or both, for a third or subsequent
offense.
(2) A person convicted of an offense under subsection (a)
that is--
(A) any other production or transfer of an
identification document or false identification
document; or
(B) an offense under paragraph (3) of such
subsection;
shall be punishable by a fine under this title, imprisonment
for not more than three years, or both.
(3) A person convicted of an offense under subsection (a),
other than an offense described in paragraph (1) or (2), shall
be punishable by a fine under this title, imprisonment for not
more than one year, or both.
(4) Notwithstanding any other provision of this section,
the maximum term of imprisonment that may be imposed for an
offense described in paragraph (1)(A) shall be--
(A) if committed to facilitate a drug trafficking
crime (as defined in section 929(a) of this title), 15
years; and
(B) if committed to facilitate an act of
international terrorism (as defined in section 2331 of
this title), 20 years.
* * * * * * *
CHAPTER 69--NATIONALITY AND CITIZENSHIP
* * * * * * *
Sec. 1425. Procurement of citizenship or naturalization unlawfully
(a) Whoever knowingly procures or attempts to procure,
contrary to law, the naturalization of any person, or
documentary or other evidence of naturalization or of
citizenship; or
(b) Whoever, whether for himself or another person not
entitled thereto, knowingly issues, procures or obtains or
applies for or otherwise attempts to procure or obtain
naturalization, or citizenship, or a declaration of intention
to become a citizen, or a certificate of arrival or any
certificate or evidence of naturalization or citizenship,
documentary or otherwise, or duplicates or copies of any of the
foregoing--
Shall [be fined not more than $5,000 or imprisoned not more
than five years, or both.] , except as otherwise provided in
this section, be--
(1) fined under this title, imprisoned for not more
than 10 years, or both, for a first or second offense;
or
(2) fined under this title, imprisoned for not more
than 15 years, or both, for a third or subsequent
offense.
``Notwithstanding any other provision of this section, the
maximum term of imprisonment that may be imposed for an offense
under this section--
(1) if committed to facilitate a drug trafficking
crime (as defined in section 929(a) of this title), is
15 years; and
(2) if committed to facilitate an act of
international terrorism (as defined in section 2331 of
this title), is 20 years.
Sec. 1426. Reproduction of naturalization or citizenship papers
(a) Whoever falsely makes, forges, alters or counterfeits
any oath, notice, affidavit, certificate of arrival,
declaration of intention, certificate or documentary evidence
of naturalization or citizenship or any order, record,
signature, paper or proceeding or any copy thereof, required or
authorized by any law relating to naturalization or citizenship
or registry of aliens; or
* * * * * * *
(h) Whoever, without lawful authority, prints, photographs,
makes or executes any print or impression in the likeness of a
certificate of arrival, declaration of intention to become a
citizen, or certificate of naturalization or citizenship, or
any part thereof--
Shall [be fined not more than $5,000 or imprisoned not more
than five years, or both.], except as otherwise provided in
this section, be--
(1) fined under this title, imprisoned for not more
than 10 years, or both, for a first or second offense;
or
(2) fined under this title, imprisoned for not more
than 15 years, or both, for a third or subsequent
offense.
Notwithstanding any other provision of this section, the
maximum term of imprisonment that may be imposed for an offense
under this section--
(1) if committed to facilitate a drug trafficking
crime (as defined in section 929(a) of this title), is
15 years; and
(2) if committed to facilitate an act of
international terrorism (as defined in section 2331 of
this title), is 20 years.
Sec. 1427. Sale of naturalization or citizenship papers
Whoever unlawfully sells or disposes of a declaration of
intention to become a citizen, certificate of naturalization,
certificate of citizenship or copies or duplicates or other
documentary evidence of naturalization or citizenship, shall
[be fined not more than $5,000 or imprisoned not more than five
years, or both], except as otherwise provided in this section,
be--
(1) fined under this title, imprisoned for not more
than 10 years, or both, for a first or second offense;
or
(2) fined under this title, imprisoned for not more
than 15 years, or both, for a third or subsequent
offense.
Notwithstanding any other provision of this section, the
maximum term of imprisonment that may be imposed for an offense
under this section--
(1) if committed to facilitate a drug trafficking
crime (as defined in section 929(a) of this title), is
15 years; and
(2) if committed to facilitate an act of
international terrorism (as defined in section 2331 of
this title), is 20 years
* * * * * * *
CHAPTER 75--PASSPORTS AND VISAS
* * * * * * *
Sec. 1541. Issuance without authority
Whoever, acting or claiming to act in any office or
capacity under the United States, or a State or possession,
without lawful authority grants, issues, or verifies any
passport or other instrument in the nature of a passport to or
for any person whomsoever; or
Whoever, being a consular officer authorized to grant,
issue, or verify passports, knowingly and willfully grants,
issues, or verifies any such passport to or for any person not
owing allegiance, to the United States, whether a citizen or
not--
Shall [be fined under this title, imprisoned not more than
10 years, or both.] , except as otherwise provided in this
section, be--
(1) fined under this title, imprisoned for not more
than 10 years, or both, for a first or second offense;
or
(2) fined under this title imprisoned for not more
than 15 years, or both, for a third or subsequent
offense.
Notwithstanding any other provision of this section, the
maximum term of imprisonment that may be imposed for an offense
under this section--
(1) if committed to facilitate a drug trafficking
crime (as defined in section 929(a) of this title), is
15 years; and
(2) if committed to facilitate an act of
international terrorism (as defined in section 2331 of
this title), is 20 years.
Sec. 1542. False statement in application and use of passport
Whoever willfully and knowingly makes any false statement
in an application for passport with intent to induce or secure
the issuance of a passport under the authority of the United
States, either for his own use or the use of another, contrary
to the laws regulating the issuance of passports or the rules
prescribed pursuant to such laws; or
Whoever willfully and knowingly uses or attempts to use, or
furnishes to another for use any passport the issue of which
was secured in any way by reason of any false statement--
Shall [be fined under this title, imprisoned not more than
10 years, or both.] , except as otherwise provided in this
section, be--
(1) fined under this title, imprisoned for not more
than 10 years, or both, for a first or second offense;
or
(2) fined under this title, imprisoned for not more
than 15 years, or both, for a third or subsequent
offense.
Notwithstanding any other provision of this section, the
maximum term of imprisonment that may be imposed for an offense
under this section--
(1) if committed to facilitate a drug trafficking
crime (as defined in section 929(a) of this title), is
15 years; and
(2) if committed to facilitate an act of
international terrorism (as defined in section 2331 of
this title), is 20 years.
Sec. 1543. Forgery or false use of passport
Whoever falsely makes, forges, counterfeits, mutilates, or
alters any passport or instrument purporting to be a passport,
with intent that the same may be used; or
Whoever willfully and knowingly uses, or attempts to use,
or furnishes to another for use any such false, forged,
counterfeited, mutilated or altered passport or instrument
purporting to be a passport, or any passport validly issued
which has become void by the occurrence of any condition
therein prescribed invalidating the same--
Shall [be fined under this title, imprisoned not more than
10 years, or both.] , except as otherwise provided in this
section, be--
(1) fined under this title, imprisoned for not more
than 10 years, or both, for a first or second offense;
or
(2) fined under this title, imprisoned for not more
than 15 years, or both, for a third or subsequent
offense.
Notwithstanding any other provision of this section, the
maximum term of imprisonment that may be imposed for an offense
under this section--
(1) if committed to facilitate a drug trafficking
crime (as defined in section 929(a) of this title), is
15 years; and
(2) if committed to facilitate an act of
international terrorism (as defined in section 2331 of
this title), is 20 years.
Sec. 1544. Misuse of passport
Whoever willfully and knowingly uses, or attempts to use,
any passport issued or designed for the use of another; or
Whoever willfully and knowingly uses or attempts to use any
passport in violation of the conditions or restrictions therein
contained, or of the rules prescribed pursuant to the laws
regulating the issuance of passports; or
Whoever willfully and knowingly furnishes, disposes of, or
delivers a passport to any person, for use by another than the
person for whose use it was originally issued and designed--
Shall [be fiend under this title, imprisoned not more than
10 years, or both.] except as otherwise provided in this
section, be--
(1) fined under this title, imprisoned for not more
than 10 years, or both, for a first or second offense;
or
(2) fined under this title, imprisoned for not more
than 15 years, or both, for a third or subsequent
offense.
Notwithstanding any other provision of this section, the
maximum term of imprisonment that may be imposed for an offense
under this section--
(1) if committed to facilitate a drug trafficking
crime (as defined in section 929(a) of this title), is
15 years; and
(2) if committed to facilitate an act of
international terrorism (as defined in section 2331 of
this title), is 20 years.
* * * * * * *
Sec. 1546. Fraud and misuse of visas, permits, and other documents
(a) Whoever knowingly forges, counterfeits, alters, or
falsely makes any immigrant of nonimmigrant visa, permit,
border crossing card, alien registration receipt card, or other
document prescribed by statute or regulation for entry into or
as evidence of authorized stay or employment in the United
State, or utters, uses, attempts to use, possesses, obtains,
accepts, or receives any such visa, permit, border crossing
card, alien registration receipt card, or other document
prescribed by statute or regulation for entry into or as
evidence of authorized stay or employment in the United States,
knowing it to be forged, counterfeited, altered, or falsely
made, or to have been procured by means of any false claim or
statement, or to have been otherwise procured by fraud or
unlawfully obtained; or
* * * * * * *
[Whoever knowingly makes under oath, or as permitted under
penalty of perjury under section 1746 of title 28, United
States Code, knowingly subscribes as true, any false statement
with respect to a material fact in any application, affidavit,
or other document required by the immigration laws or
regulations prescribed thereunder, or knowingly presents any
such application, affidavit, or other document containing any
such false statement--]
Whoever knowingly makes under oath, or as permitted under
penalty of perjury under section 1746 of title 28, United
States Code, knowingly subscribes as true, any false statement
with respect to a material fact in any application, affidavit,
or other document required by the immigration laws or
regulations prescribed thereunder, or knowingly presents any
such application, affidavit, or other document which contains
any such false statement or which fails to contain any
reasonable basis in law or fact--
Shall [be fined under this title or imprisoned not more
than 10 years*, or both], except as otherwise provided in this
subsection, be--
(1) fined under this title, imprisoned for not more
than 10 years, or both, for a first or second offense;
or
(2) fined under this title, imprisoned for not more
than 15 years, or both, for a third or subsequent
offense.
Notwithstanding any other provision of this subsection, the
maximum term of imprisonment that may be imposed for an offense
under this subsection--
(1) if committed to facilitate a drug trafficking
crime (as defined in section 929(a) of this title), is
15 years; and
(2) if committed to facilitate an act of
international terrorism (as defined in section 2331 of
this title), is 20 years.
* * * * * * *
CHAPTER 77--PEONAGE AND SLAVERY
* * * * * * *
Sec. 1581. Peonage; obstructing enforcement
(a) Whoever holds or returns any person to a condition of
peonage, or arrests any person with the intent of placing him
in or returning him to a condition of peonage, shall be fined
not more than $5,000 or imprisoned not more than [five] 10
years, or both.
* * * * * * *
Sec. 1583. Enticement into slavery
Whoever kidnaps or carries away any other person, with the
intent that such other person be sold into involuntary
servitude, or held as a slave; or
Whoever entices, persuades, or induces any other person to
go on board any vessel or to any other place with the intent
that he may be made or held as a slave, or sent out of the
country to be so made or held--
Shall be fined not more than $5,000 or imprisoned not more
than [five] 10 years, or both.
* * * * * * *
Sec. 1584. Sale into involuntary servitude
Whoever knowingly and willfully holds to involuntary
servitude or sells into any condition of involuntary servitude,
any other person for any term, or brings within the United
States any person so held, shall be fined not more than $5,000
or imprisoned not more than [five] 10 years, or both
* * * * * * *
Sec. 1588. Transportation of slaves from United States
Whoever, being the master or owner or person having charge
of any vessel, receives on board any other person with the
knowledge or intent that such person is to be carried from any
place within the United States to any other place to be held or
sold as a slave, or carries away from any place within the
United States any such person with the intent that he may be so
held or sold as a slave, shall be fined not more than $5,000 or
imprisoned not more than [five] 10 years, or both.
* * * * * * *
CHAPTER 96--RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
* * * * * * *
Sec. 1961. Definitions
As used in this chapter--
(1) ``racketeering activity'' means (A) any act or
threat involving murder, kidnapping, gambling, arson,
robbery, bribery, extortion, dealing in obscene matter,
or dealing in narcotic or other dangerous drugs, which
is chargeable under State law and punishable by
imprisonment for more than one year; (B) any act which
is indictable under any of the following provisions of
title 18, United States Code: Section 201 (relating to
bribery), section 224 (relating to sports bribery),
sections 471, 472, and 473 (relating to
counterfeiting), section 659 (relating to theft from
interstate shipment) if the act indictable under
section 659 is felonious, section 664 (relating to
embezzlement from pension and welfare funds), sections
891-894 (relating to extortionate credit transactions),
section 1029 (relating to fraud and related activity in
connection with access devices), section 1084 (relating
to the transmission of gambling information), section
1341 (relating to mail fraud), section 1343 (relating
to wire fraud), section 1344 (relating to financial
institution fraud), sections 1461-1465 (relating to
obscene matter), section 1503 (relating to obstruction
of justice), section 1510 (relating to obstruction of
criminal investigations), section 1511 (relating to the
obstruction of State or local law enforcement), section
1512 (relating to tampering with a witness, victim, or
an informant), section 1513 (relating to retaliating
against a witness, victim, or an informant), section
1951 (relating to interference with commerce, robbery,
or extortion), section 1952 (relating to racketeering),
section 1953 (relating to interstate transportation of
wagering paraphernalia), section 1954 (relating to
unlawful welfare fund payments), section 1955 (relating
to the prohibition of illegal gambling businesses),
section 1956 (relating to the laundering of monetary
instruments), section 1957 (relating to engaging in
monetary transactions in property derived from
specified unlawful activity, section 1958 (relating to
use of interstate commerce facilities in the commission
of murder-for-hire), sections 2312 and 2313 (relating
to interstate transportation of stolen motor vehicles),
section 2314 and 2315 (relating to interstate
transportation of stolen property), section 2321
(relating to trafficking in certain motor vehicles or
motor vehicle parts), sections 2341-2346 (relating to
trafficking in contraband cigarettes), sections 2421-24
(relating to white slave traffic), (C) any act which is
indictable under title 29, United States Code, section
186 (dealing with restrictions on payments and loans to
labor organizations) or section 501(c) (relating to
embezzlement from union funds), (D) any offense
involving fraud connected with a case under title 11,
fraud in the sale of securities, or the felonious
manufacture, importation, receiving, concealment,
buying, selling, or otherwise dealing in narcotic or
other dangerous drugs, punishable under any law of the
United States, [or] (E) any act which is indictable
under the Currency and Foreign Transactions Reporting
Act; or (F) any act, or conspiracy to commit any act,
in violation of--
(i) section 1028 (relating to production of false
identification documentation), section 1425 (relating
to the procurement of citizenship or nationalization
unlawfully), section 1426 (relating to the reproduction
of naturalization or citizenship papers), section 1427
(relating to the sale of naturalization or citizenship
papers), section 1541 (relating to passport issuance
without authority), section 1542 (relating to false
statements in passport applications), section 1543
(relating to forgery or false use of passports), or
section 1544 (relating to misuse of passports) of this
title, or, for personal financial gain, section 1546
(relating to fraud and misuse of visas, permits, and
other documents) of this title; or
(ii) section 274, 277, or 278 of the Immigration and
Nationality Act.
CHAPTER 117--TRANSPORTATION FOR ILLEGAL SEXUAL ACTIVITY AND RELATED
CRIMES
* * * * * * *
Sec. 2424. Filing factual statement about alien individual
(a) Whoever keeps, maintains, controls, supports, or
harbors in any house or place for the purpose of prostitution,
or for any other immoral purpose, any [alien] individual,
knowing or in reckless disregard of the fact that the
individual is an alien [within three years after that
individual has entered the United States from any country,
party to the arrangement adopted July 25, 1902, for the
suppression of the white-slave traffic], shall file with the
Commissioner of Immigration and Naturalization a statement in
writing setting forth the name of such [alien] individual, the
place at which that individual is kept, and all facts as to the
date of that individual's entry into the United States, the
port through which that individual entered, that individual's
age, nationality and parentage, and concerning that
individual's procuration to come to this country within the
knowledge of such person; and
Whoever fails within [thirty] five business days after
commencing to keep, maintain, control, support, or harbor in
any house or place for the purpose of prostitution, or for any
other immoral purpose, any alien individual [within three years
after that individual has entered the United States from any
country, party to the said arrangement for the suppression of
the white-slave traffic], to file such statement concerning
such alien individual with the Commissioner of Immigration and
Naturalization, or
Whoever knowingly and willfully states falsely or fails to
disclose in such statement any fact within that person's
knowledge or belief with reference to the age, nationality, or
parentage of any such alien individual, or concerning that
individual's procuration to come to this country--
Shall be fined under this title or imprisoned not more than
[two] 10 years, or both.
(b) In any prosecution brought under this section, if it
appears that any such statement required is not on file in the
office of the Commissioner of Immigration and Naturalization,
the person whose duty it is to file such statement shall be
presumed to have failed to file said statement, unless such
person or persons shall prove otherwise. No person shall be
excused from furnishing the statement as required by this
section, on the ground or for the reason that the statement so
required by that person, or the information therein contained,
might tend to criminate that person or subject that person to a
penalty or forfeiture, but no information contained in the
statement or any evidence which is directly or indirectly
derived from such information may be used against any person
making such statement in any criminal case, except a
prosecution for perjury, giving a false statement or otherwise
failing to comply with this section, or for enforcement of the
provisions of section 274A of the Immigration and Nationality
Act.
CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
* * * * * * *
Sec. 2516. Authorization for interception of wire, oral, or electronic
communications
(1) The Attorney General, Deputy Attorney General,
Associate Attorney General, or any Assistant Attorney General,
any acting Assistant Attorney General, or any Deputy Assistant
Attorney General in the Criminal Division specially designated
by the Attorney General, may authorize an application to a
Federal judge of competent jurisdiction for, and such judge may
grant in conformity with section 2518 of this chapter an order
authorizing or approving the interception of wire or oral
communications by the Federal Bureau of Investigation, or a
Federal agency having responsibility for the investigation of
the offense as to which the application is made, when such
interception may provide or has provided evidence of--
(a) * * *
* * * * * * *
(c) any offense which is punishable under the
following sections of this title: section 201 (bribery
of public officials and witnesses), section 215
(relating to bribery of bank officials), section 224
(bribery in sporting contests), subsection (d), (e),
(f), (g), (h), or (i) of section 844 (unlawful use of
explosives), section 1032 (relating to concealment of
assets), section 1084 (transmission of wagering
information), section 751 (relating to escape), section
1014 (relating to loans and credit applications
generally; renewals and discounts), sections 1503,
1512, and 1513 (influencing or injuring an officer,
juror, or witness generally), section 1510 (obstruction
of criminal investigations), section 1511 (obstruction
of State or local law enforcement), section 1751
(Presidential and Presidential staff assassination,
kidnaping, and assault), section 1951 (interference
with commerce by threats or violence), section 1952
(interstate and foreign travel or transportation in aid
of racketeering enterprises), section 1958 (relating to
use of interstate commerce facilities in the commission
of murder for hire), section 1959 (relating to violent
crimes in aid of racketeering activity), section 1954
(offer, acceptance, or solicitation to influence
operations of employee benefit plan), section 1955
(prohibition of business enterprises of gambling),
section 1956 (offer, acceptance, or solicitation to
influence operations of employee benefit plan), section
1955 (prohibition of business enterprises of gambling),
section 1956 (laundering of monetary instruments),
section 1957 (relating to engaging in monetary
transactions in property derived from specified
unlawful activity), section 659 (theft from interstate
shipment), section 664 (embezzlement from pension and
welfare funds), section 1343 (fraud by wire, radio, or
television), section 1344 (relating to bank fraud),
sections 2251 and 2252 (sexual exploitation of
children), sections 2312, 2313, 2314, and 2315
(interstate transportation of stolen property), section
2321 (relating to trafficking in certain motor vehicles
or motor vehicle parts), section 1203 (relating to
hostage taking), section 1029 (relating to fraud and
related activity in connection with access devices),
section 3146 (relating to penalty for failure to
appear), section 3521(b)(3) (relating to witness
relocation and assistance), section 32 (relating to
destruction of aircraft or aircraft facilities),
section 1963 (violations with respect to racketeer
influenced and corrupt organizations), section 115
(relating to threatening of retaliating against a
Federal official), and section 1341 (relating to mail
fraud), section 351 (violations) with respect to
congressional, Cabinet, or Supreme Court
assassinations, kidnaping, and assault), section 831
(relating to prohibited transactions involving nuclear
materials), section 33 (relating to destruction of
motor vehicles or motor vehicle facilities), section
175 (relating to biological weapons), [or section 1992
(relating to wrecking trains]; section 1992 (relating
to wrecking trains), a felony violation of section 1028
(relating to production of false identification
documentation), section 1425 (relating to the
procurement of citizenship or nationalization
unlawfully), section 1426 (relating to the reproduction
of naturalization or citizenship papers), section 1427
(relating to the sale of naturalization or citizenship
papers), section 1541 (relating to passport issuance
without authority), section 1542 (relating to false
statements in passport applications), section 1543
(relating to forgery or false use of passports),
section 1544 (relating to misuse of passports), or
section 1546 (relating to fraud and misuse of visas,
permits, and other documents)
* * * * * * *
(l) the location of any fugitive from justice from an
offense described in this section; [or]
(m) a violation of section 274, 277, or 278 of the
Immigration and Nationality Act (8 U.S.C. 1324, 1327, or 1328)
(relating to the smuggling of aliens);
[(m)](n) any felony violation of sections 922 and 924 of
title 18, United States Code (relating to firearms);
[(n)](o) any violation of section 5861 of the Internal
Revenue Code of 1986 (relating to firearms); and
[(o)](p) any conspiracy to commit any offense described in
any subparagraph of the paragraph.
* * * * * * *
CHAPTER 227--SENTENCE, JUDGMENT, AND EXECUTION
* * * * * * *
Sec. 3563. Conditions of probation
(a) Mandatory Conditions.--The court shall provide, as an
explicit condition of sentence of probation--
* * * * * * *
(b) Discretionary Conditions.--The court may provide as
further conditions of sentence of probation, to the extent that
such conditions are reasonably related to factors set forth in
section 3553(a)(1) and (a)(2) and to the extent that such
condition involve only such deprivations of liberty or property
as are reasonably necessary for purposes indicated in section
3553(a)(2), that the defendant--
(1) * * *
* * * * * * *
(21) comply with the terms of any court order or order of
an administrative process pursuant to the law of a State, the
District of Columbia, or any other possession or territory of
the United States, requiring payments by the defendant for the
support and maintenance of a child or of a child and the parent
with whom the child is living; [or]
(22) satisfy such other conditions as the court may
impose[.]; or
(23) be ordered deported by a United States District Court,
or United States Magistrate Court, pursuant to a stipulation
entered into by the defendant and the United States under
section 242A(c) of the Immigration and Nationality Act (8
U.S.C. 1252a(c)), except that, in the absence of a stipulation,
the United States District Court or the United States
Magistrate Court, may order deportation as a condition of
probation, if, after notice and hearing pursuant to section
242A(c) of the Immigration and Nationality Act, the Attorney
General demonstrates by clear and convincing evidence that the
alien is deportable.
* * * * * * *
CHAPTER 306--TRANSFER TO OR FROM FOREIGN COUNTRIES
* * * * * * *
Sec. 4113. Status of alien offender transferred to a foreign country
(a) An alien who is deportable from the United States but
who has been granted voluntary departure pursuant to [section
1252(b)] section 1252(b)(1) or section 1254(e) of title 8,
United States Code, and who is transferred to a foreign country
pursuant to this chapter shall be deemed for all purposes to
have voluntarily departed from this country.
* * * * * * *
TITLE 26--INTERNAL REVENUE CODE
* * * * * * *
CHAPTER 1--NORMAL TAXES AND SURTAXES
* * * * * * *
Sec. 32. Earned income
(a) Allowance of credit.--
* * * * * * *
(c) Definitions and special rules.--For purposes of this
section--
(1) Eligible individual.--
(A) In general.--The term ``eligible
individual'' means--
* * * * * * *
(E) Abode must be in the United States.--The
requirements of subparagraphs (A)(ii) and
(B)(iii)(II) shall be met only if the principal
place of abode is in the United States.
(F) Identification number requirement.--The
term ``eligible individual'' does not include
any individual who does not include on the
return of tax for the taxable year--
(i) such individual's taxpayer
identification number, and
(ii) if the individual is married
(within the meaning of section 7703),
the taxpayer identification number of
such individual's spouse.
* * * * * * *
(j) Coordination With Certain Means-Tested Programs.--For
purposes of--
(1) the United States Housing Act of 1937,
(k) Identification Numbers.--Solely for purposes of
subsections (c)(1)(F) and (c)(3)(D), a taxpayer identification
number means a social security number issued to an individual
by the Social Security Administration (other than a social
security number issued pursuant to clause (II) (or that portion
of clause (III) that relates to clause (II)) of section
205(c)(2)(B)(i) of the Social Security Act).
* * * * * * *
CHAPTER 61--INFORMATION AND RETURNS
* * * * * * *
Sec. 6213. Restrictions applicable to deficiencies; petition to Tax
Court
(a) Time for Filing Petition and Restriction on
Assessment.--* * *
* * * * * * *
(g) Definitions.--For purposes of this section--
(1) Return.--The term ``return'' includes any return,
statement, schedule, or list, and any amendment or
supplement thereto, filed with respect to any tax
imposed by subtitle A or B, or chapter 41, 42, 43, or
44.
(2) Mathematical or clerical error.--The term
``mathematical or clerical error'' means--
(A) an error in addition, subtraction,
multiplication, or division shown on any
return,
(B) an incorrect use of any table provided by
the Internal Revenue Service with respect to
any return if such incorrect use is apparent
from the existence of other information on the
return,
(C) an entry on a return of an item which is
inconsistent with another entry of the same or
another item on such return,
(D) an omission of information which is
required to be supplied on the return to
substantiate an entry on the return, [and]
(E) an entry on a return of a deduction or
credit in an amount which exceeds a statutory
limit imposed by subtitle A or B, or chapter
41, 42, 43, or 44, if such limit is expressed--
(i) as a specified monetary amount,
or
(ii) as a percentage, ratio, or
fraction, and if the items entering
into the application of such limit
appear on such return[.], and
(F) an unintended omission of a correct taxpayer
identification number required under section 32 (relating to
the earned income tax credit) to be included on a return.
* * * * * * *
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
* * * * * * *
CHAPTER 119--EVIDENCE; WITNESSES
* * * * * * *
Sec. 1821. Per diem and mileage generally; subsistence
(a)(1) Except as otherwise provided by law, a witness in
attendance at any court of the United States, or before a
United States Magistrate, or before any person authorized to
take his deposition pursuant to any rule or order of a court of
the United States, shall be paid the fees and allowances
provided by this section.
* * * * * * *
(e) An alien who has been paroled into the United States
for prosecution, pursuant to section 212(d)(5) of the
Immigration and Nationality Act (8 U.S.C. 1182(d)(5)), or an
alien who either has admitted belonging to a class of aliens
who are deportable or has been determined pursuant to [section
242(b) of such Act (8 U.S.C. 1252(b))] section 242(b)(1) of
such Act (8 U.S.C. 1252(b)(1)) to be deportable, shall be
ineligible to receive the fees or allowances provided by this
section.
* * * * * * *
TITLE 42--THE PUBLIC HEALTH AND WELFARE
* * * * * * *
CHAPTER 7--SOCIAL SECURITY
* * * * * * *
Sec. 1396a. State plans for medical assistance
(a) Contents.--A State plan for medical assistance must--
(1) provide that it shall be in effect in all
political subdivisions of the State, and, if
* * * * * * *
(61) provide that the State must demonstrate that it
operates a medicaid fraud and abuse control unit
described in section 1396b(q) of this title that
effectively carries out the functions and requirements
described in such section, as determined in accordance
with standards established by the Secretary, unless the
State demonstrates to the satisfaction of the Secretary
that the effective operation of such a unit in the
State would not be cost-effective because minimal fraud
exists in connection with the provision of covered
services to eligible individuals under the State plan,
and that beneficiaries under the plan will be protected
from abuse and neglect in connection with the provision
of medical assistance under the plan without the
existence of such a unit; [and]
(62) provide for a program for the distribution of
pediatric vaccines to program-registered providers for
the immunization of vaccine-eligible children in
accordance with section 1396s of this title[.] ; and
(63) in the case of a State that is certified by the
Attorney General as a high illegal immigration State (as
determined by the Attorney General), at the election of the
State, establish and operate a program for the placement of
anti-fraud investigators in State, county, and private
hospitals located in the State to verify the immigration status
and income eligibility of applicants for medical assistance
under the State plan prior to the furnishing of medical
assistance.
* * * * * * *
Sec. 1396b. Payment to States
(a) Computation of Amount.--From the sums appropriated
therefor, the Secretary (except as otherwise provided in this
section) shall pay to each State which has a plan approved
under this subchapter, for each quarter, beginning with the
quarter commencing January 1, 1966--
(1) an amount equal to the Federal medical assistance
percentage (as defined in section 1396d(b) of this
title, subject to subsections (g) and (j) of this
section and section 1396r-4(f) of this title) of the
total amount expended during such quarter as medical
assistance under the State plan; plus
* * * * * * *
(6) subject to subsection (b)(3) of this section, an
amount equal to--
(A) 90 per centum of the sums expended during
such a quarter within the twelve-quarter period
beginning with the first quarter in which a
payment is made to the State pursuant to this
paragraph, and
(B) 75 per centum of the sums expended during
each succeeding calendar quarter,
with respect to costs incurred during such quarter (as
found necessary by the Secretary for the elimination of
fraud in the provision and administration of medical
assistance provided under the State plan) which are
attributable to the establishment and operation of
(including the training of personnel employed by) a
State medicaid fraud control unit (described in
subsection (q) of this section); [plus]
(7) subject to section 1396r(g)(3)(B) of this title,
an amount equal to 50 per centum of the remainder of
the amounts expended during such quarter as found
necessary by the Secretary for the proper and efficient
administration of the State plan[.]; plus
``(8) an amount equal to the Federal medical assistance
percentage (as defined in section 1905(b)) of the total amount
expended during such quarter which is attributable to operating
a program under section 1902(a)(63).
* * * * * * *
TITLE 50--WAR AND NATIONAL DEFENSE
* * * * * * *
CHAPTER 12--VESSELS IN TERRITORIAL WATERS OF UNITED STATES
* * * * * * *
Sec. 191. Regulation of anchorage and movement of vessels during
national emergency
Whenever the President by proclamation or Executive order
declares a national emergency to exist by reason of actual or
threatened war, insurrection, or invasion, or disturbance or
threatened disturbance of the international relations of the
United States, or whenever the Attorney General determines that
an actual or anticipated mass migration of aliens en route to
or arriving off the coast of the United States presents urgent
circumstances requiring an immediate Federal response, the
Secretary of Transportation may make, subject to the approval
of the President, rules and regulations governing the anchorage
and movement of any vessel, foreign or domestic, in the
territorial waters of the United States, may inspect such
vessel at any time, place guards thereon, and, if necessary in
his opinion in order to secure such vessels from damage or
injury, or to prevent damage or injury to any harbor or waters
of the United States , or to secure the observance of the
rights and obligations of the United States, may take, by and
with the consent of the President, for such purposes, full
possession and control of such vessel and remove therefrom the
officers and crew thereof and all other persons not
specifically authorized by him to go or remain on the board
thereof.
* * * * * * *
Immigration and Nationality Act
* * * * * * *
TABLE OF CONTENTS
Title I--General
Sec. 101. Definitions.
Sec. 102. Applicability of title II to certain nonimmigrants.
Sec. 103. Powers and duties of the Attorney General and the
Commissioner.
Sec. 104. Powers and duties of the Secretary of State.
Sec. 105. Liaison with internal security officers.
[Sec. 106. Judicial review of orders of deportation and exclusion.]
Sec. 106. Judicial review of orders of deportation, exclusion, and
special exclusion.
* * * * * * *
chapter 5--deportation; adjustment of status
Sec. 241. General classes of deportable aliens.
Sec. 242. Apprehension and deportation of aliens.
Sec. 242A. Expedited procedures for deportation of aliens convicted of
committing aggravated felonies.Ob
Sec. 242B. Deportation procedures.
Sec. 243. Countries to which aliens shall be deported; cost of
deportation.
[Sec. 244. Suspension of deportation; voluntary departure.]
Sec. 244. Cancellation of deportation; adjustment of status; voluntary
departure.
Sec. 244A. Temporary protected status.
Sec. 245. Adjustment of status of nonimmigrant to that of person
admitted for permanent residence.
Sec. 245A. Adjustment of status of certain entrants before January 1,
1982, to that of person admitted for lawful residence.
Sec. 246. Rescission of adjustment of status.
Sec. 247. Adjustment of status of certain resident aliens to
nonimmigrant status.
Sec. 248. Change of nonimmigrant classification.
Sec. 249. Record of admission for permanent residence in the case of
certain aliens who entered prior to July 1, 1924, or January
1, 1972.
Sec. 250. Removal of aliens who have fallen into distress.
* * * * * * *
chapter 8--general penalty provisions
Sec. 271. Prevention of unauthorized landing of aliens.
Sec. 272. Bringing in aliens subject to exclusion on a health-related
ground.
Sec. 273. Unlawful bringing of aliens into United States.
Sec. 274. Bringing in and harboring certain aliens.
Sec. 274A. Unlawful employment of aliens.
Sec. 274B. Unfair immigration-related employment practices.
Sec. 274C. Penalties for document fraud.
Sec. 274D. Civil penalties for failure to depart.
Sec. 275. Entry of alien at improper time or place; misrepresentation
and concealment of facts.
Sec. 276. Reentry of deported alien.
Sec. 277. Aiding or assisting certain aliens to enter the United States.
Sec. 278. Importation of alien for immoral purposes.
Sec. 279. Jurisdiction of district courts.
Sec. 280. Collection of penalties and expenses.
chapter 9--miscellaneous
Sec. 281. Nonimmigrant visa fees.
Sec. 282. Printing of reentry permits and blank forms of manifests and
crew lists.
Sec. 283. Travel expenses and expense of transporting remains of
immigration officers and employees who die outside of the
United States.
Sec. 284. Members of the Armed Forces.
Sec. 285. Disposal of privileges at immigrant stations.
Sec. 286. Disposition of moneys collected under the provisions of this
title.
Sec. 287. Powers of immigration officers and employees.
Sec. 288. Local jurisdiction over immigration stations.
Sec. 289. American Indians born in Canada.
Sec. 290. Central file; information from other departments and agencies.
Sec. 291. Burden of proof.
Sec. 292. Right to counsel.
Sec. 293. Deposit of and interest on cash received to secure immigration
bonds.
Sec. 294. Secretary of Labor subpoena authority.
TITLE I--GENERAL
definitions
Section 101. (a) As used in this Act--
* * * * * * *
(43) The term ``aggravated felony'' means--
* * * * * * *
(D) an offense described in section 1956 of
title 18, United States Code (relating to
laundering of monetary instruments) or section
1957 of that title (relating to engaging in
monetary transactions in property derived from
specific unlawful activity) if the amount of
the funds exceeded [$100,000] $100,000;
* * * * * * *
(F) a crime of violence (as defined in
section 16 of title 18, United States Code, but
not including a purely political offense) for
which the term of imprisonment imposed
(regardless of any suspension of imprisonment)
[is at least 5 years] at least one year;
(G) a theft offense (including receipt of
stolen property) or burglary offense for which
the term of imprisonment imposed (regardless of
any suspension of such imprisonment) [is at
least 5 years] at least one year;
(H) an offense described in section 875, 876,
877, or 1202 of title 18, United States Code
(relating to the demand for or receipt of
ransom);
(I) an offense described in section 2251,
2251A, or 2252 of title 18, United States Code
(relating to child pornography);
(J) an [offense described] offense described
in section 1084 of title 18 (if it is a second
or subsequent offense), section 1955 of such
title (relating to gambling offenses), or in
section 1962 of title 18, United States Code
relating to racketeer influenced corrupt
organizations) for which a sentence of 5 years'
imprisonment] sentence of one year imprisonment
or more may be imposed;
(K) an offense that--
(i) relates to the owning,
controlling, managing, or supervising
of a prostitution business; [or]
(ii) is described in section 1581,
1582, 1583, 1584, 1585, or 1588, of
title 18, United States Code (relating
to peonage, slavery, and involuntary
servitude); or
(iii) is described in section 2421,
2422, or 2423 of title 18, United
States Code (relating to transportation
for the purpose of prostitution), if
committed for commercial advantage.
(L) an offense described in--
(i) section 793 (relating to
gathering or transmitting national
defense information), 798 (relating to
disclosure of classified information),
2153 (relating to sabotage) or 2381 or
2382 (relating to treason) of title 18,
United States Code; [or]
(ii) section 601 of the National
Security Act of 1947 (50 U.S.C. 421
(relating to protecting the identity of
undercover intelligence agents); or
(iii) section 601 of the National
Security Act of 1947 (relating to
protecting the identity of undercover
agents);
(M) an offense that--
(i) involves fraud or deceit in which
the loss to the victim or victims
exceeds $200,000; or
(ii) is described in section 7201 of
the Internal Revenue Code of 1986
(relating to tax evasion) in which the
revenue loss to the Government exceeds
[$200,000] $10,000;
(N) an offense described in section 274(a)(1)
[of title 18, United States Code] (relating to
alien smuggling) [for the purpose of commercial
advantage], except, for a first offense, if the
alien has affirmatively shown that the alien
committed the offense for the purpose of
assisting, abetting, or aiding only the alien's
spouse, child, or parent (and no other
individual) to violate a provision of this Act;
(O) an offense described in section 1546(a)
of title 18, United States Code (relating to
document fraud) [which constitutes trafficking
in the documents described in such section for
which the term of imprisonment imposed
(regardless of any suspicion of such
imprisonment) [is at least 5 years] (at least
one year) a first offense, if the alien has
affirmatively shown that the alien committed
the offense for the purpose of assisting,
abetting, or aiding only the alien's spouse,
child, or parent (and no other individual) to
violate a provision of this Act;
(P) any offense relating to commercial
bribery, counterfeiting, forgery, or
trafficking in vehicles whose identification
numbers have been altered for which the term of
imprisonment imposed (regardless of any
suspension of imprisonment) is at least one
year;
(Q) any offense relating to perjury or
subornation of perjury for which the term of
imprisonment imposed (regardless of any
suspension of imprisonment) is at least one
year;
[(P)] (R) an offense relating to a failure to
appear by a defendant for service of sentence
if the underlying offense is punishable by
imprisonment for a term of [15] 5 years or
more; and
[(Q)] (S) an attempt or conspiracy to commit
an offense described in this paragraph.
The term applies to an offense described in this
paragraph whether in violation of Federal or State law
and applies to such an offense in violation of the law
of a foreign country for which the term of imprisonment
was completed within the previous 15 years.
Notwithstanding any other provision of law, the term
applies regardless of whether the conviction was
entered before, on, or after the date of enactment of
this paragraph, except that, for purposes of section
242(f)(2), the term has the same meaning as was in
effect under this paragraph on the date the offense was
committed.
* * * * * * *
(46) The term ``extraordinary ability'' means, for
purposes of section 101(a)(15)(O)(i), in the case of
the arts, distinction.
(b) As used in titles I and II--
(1) The term ``child'' means an unmarried person under
twenty-one years of age who is--
(A) a legitimate child;
* * * * * * *
(f) For the purposes of this Act--
No person shall be regarded as, or found to be, a person of
good moral character who, during the period for which good
moral character is required to be established, is, or was--
(1) a habitual drunkard;
(3) a member of one or more of the classes of
persons, whether excludable or not, described in
paragraphs (2)(D), (6)(E), and [(9)(A) \36\ of section
212(a) (10)(A) of section 212(a) of this Act; or
subparagraphs (A) and (B) of section 212(a)(2) and
subparagraph (C) thereof of such section (except as
such paragraph relates to a single offense of simple
possession of 30 grams or less of marihuana); if the
offense described therein, for which such person was
convicted or of which he admits the commission, was
committed during such period;
(47) The term ``stowaway'' means any alien who
obtains transportation without the consent of the
owner, charterer, master, or person in command of any
vessel or aircraft through concealment aboard such
vessel or aircraft. A passenger who boards with a valid
ticket is not to be considered a stowaway.
* * * * * * *
powers and duties of the attorney general and the commissioner
Sec. 103. (a) The Attorney General shall be charged with
the administration and enforcement of this Act and all other
laws relating to the immigration and naturalization of aliens,
except insofar as this Act or such laws relate to the powers,
functions, and duties conferred upon the President, the
Secretary of State, the officers of the Department of State, or
diplomatic or consular officers: Provided, however, That
determination and ruling by the Attorney General with respect
to all questions of law shall be controlling. He shall have
control, direction, and supervision of all employees and of all
the files and records of the Service. He shall establish such
regulations; prescribe such forms of bond, reports, entries,
and other papers; issue such instructions; and perform such
other acts as he deems necessary for carrying out his authority
under the provisions of this Act. He may require or authorize
any employee of the Service or the Department of Justice to
perform or exercise any of the powers, privileges, or duties
conferred or imposed by this Act or regulations issued
thereunder upon any other employee of the Service. He shall
have the power and duty to control and guard the boundaries and
borders of the United States against the illegal entry of
aliens and shall, in his discretion, appoint for that purpose
such number of employees of the Service as to him shall appear
necessary and proper. He is authorized to confer or impose upon
any employee of the United States, with the consent of the head
of the Department or other independent establishment under
whose jurisdiction the employee is serving, any of the powers,
privileges, or duties conferred or imposed by this Act or
regulations issued thereunder upon officers or employees of the
Service. He may, with the concurrence of the Secretary of
State, establish offices of the Service in foreign countries;
and, after consultation with the Secretary of State, he may,
whenever in his judgment such action may be necessary to
accomplish the purposes of this Act, detail employees of the
Service for duty in foreign countries. In the event the
Attorney General determines that an actual or imminent mass
influx of aliens arriving off the coast of the United States,
or near a land border, presents urgent circumstances requiring
an immediate Federal response, the Attorney General may
authorize any specially designated State or local law
enforcement officer, with the consent of the head of the
department, agency, or establishment under whose jurisdiction
the individual is serving, to perform or exercise any of the
powers, privileges, or duties conferred or imposed by this Act
or regulations issued thereunder upon officers or employees of
the Service.
* * * * * * *
[judicial review of orders of deportation and exclusion
[Sec. 106. (a) The procedure prescribed by, and all the
provisions of chapter 158 of title 28, United States Code,
shall apply to, and shall be the sole and exclusive procedure
for, the judicial review of all final orders of deportation
heretofore or hereafter made against aliens within the United
States pursuant to administrative proceedings under [section
242(b)] section 242(b)(1) or pursuant to section 242A of this
Act or comparable provisions of any prior Act, except that--
[(1) a petition for review may be filed not later
than 90 days after the date of the issuance of the
final deportation order, or, in the case of an alien
convicted of an aggravated felony (including an alien
described in section 242A), not later than 30 days
after the issuance of such order;
[(2) the venue of any petition for review under this
section shall be in the judicial circuit in which the
administrative proceedings before a special inquiry
officer were conducted in whole or in part, or in the
judicial circuit wherein is the residence, as defined
in this Act, of the petitioner, but not in more than
one circuit;
[(3) the action shall be brought against the
Immigration and Naturalization Service, as respondent.
Service of the petition to review shall be made upon
the Attorney General of the United States and upon the
official of the Immigration and Naturalization Service
in charge of the Service district in which the office
of the clerk of the court is located. The service of
the petition for review upon such official of the
Service shall stay the deportation of the alien pending
determination of the petition by the court, unless the
court otherwise directs or unless the alien is
convicted of an aggravated felony (including an alien
described in section 242A), in which case the Service
shall not stay the deportation of the alien pending
determination of the petition of the court unless the
court otherwise directs;
[(4) except as provided in clause (B) of paragraph
(5) of this subsection, the petition shall be
determined solely upon the administrative record upon
which the deportation order is based and the Attorney
General's findings of fact, if supported by reasonable,
substantial, and probative evidence on the record
considered as a whole, shall be conclusive;
[(5) whenever any petitioner, who seeks review of an
order under this section, claims to be a national of
the United States and makes a showing that his claim is
not frivolous, the court shall (A) pass upon the issues
presented when it appears from the pleadings and
affidavits filed by the parties that no genuine issue
of material fact is presented; or (B) where a genuine
issue of material fact as to the petitioner's
nationality is presented, transfer the proceedings to a
United States district court for the district where the
petitioner has his residence for hearing de novo of the
nationality claim and determination as if such
proceedings were originally initiated in the district
court under the provisions of section 2201 of title 28,
United States Code. Any such petitioner shall not be
entitled to have such issue determined under section
360(a) of this Act or otherwise;
[(6) whenever a petitioner seeks review of an order
under this section, any review sought with respect to a
motion to reopen or reconsider such an order shall be
consolidated with the review of the order;
[(7) if the validity of a deportation order has not
been judicially determined, its validity may be
challenged in a criminal proceeding against the alien
for violation of subsection (d) or (e) of section 242
of this Act only by separate motion for judicial review
before trial. Such motion shall be determined by the
court without a jury and before the trial of the
general issue. Whenever a claim to United States
nationality is made in such motion, and in the opinion
of the court, a genuine issue of material fact as to
the alien's nationality is presented, the court shall
accord him a hearing de novo on the nationality claim
and determine that issue as if proceedings had been
initiated under the provisions of section 2201 of title
28, United States Code. Any such alien shall not be
entitled to have such issue determined under section
360(a) of this Act or otherwise. If no such hearing de
novo as to nationality is conducted, the determination
shall be made solely upon the administrative record
upon which the deportation order is based and the
Attorney General's findings of fact, if supported by
reasonable, substantial and probative evidence on the
record considered as a whole, shall be conclusive. If
the deportation order is held invalid, the court shall
dismiss the indictment and the United States shall have
the right to appeal to the court of appeals within
thirty days. The procedure on such appeals shall be as
provided in the Federal rules of criminal procedure. No
petition for review under this section may be filed by
an alien during the pendency of a criminal proceeding
against such alien for violation of subsection (d) or
(e) of section 242 of this Act;
[(8) nothing in this section shall be construed to
require the Attorney General to defer deportation of an
alien after the issuance of a deportation order because
of the right of judicial review of the order granted by
this section, or to relieve any alien from compliance
with subsections (d) and (e) of section 242 of this
Act. Nothing contained in this section shall be
construed to preclude the Attorney General from
detaining or continuing to detain an alien or from
taking him into custody pursuant to subsection (c) of
section 242 of this Act at any time after the issuance
of a deportation order;
[(9) it shall not be necessary to print the record or
any part thereof, or the briefs, and the court shall
review the proceedings on a typewritten record and on
typewritten briefs; and
[(10) any alien held in custody pursuant to an order
of deportation may obtain judicial review thereof by
habeas corpus proceedings.
[(b) Notwithstanding the provisions of any other law, any
alien against whom a final order of exclusion has been made
heretofore or hereafter under the provisions of section 236 of
this Act or comparable provisions of any prior Act may obtain
judicial review of such order by habeas corpus proceedings and
not otherwise.
[(c) An order of deportation or of exclusion shall not be
reviewed by any court if the alien has not exhausted the
administrative remedies available to him as of right under the
immigration laws and regulations or if he has departed from the
United States after the issuance of the order. Every petition
for review or for habeas corpus shall state whether the
validity of the order has been upheld in any prior judicial
proceeding, and, if so, the nature and date thereof, and the
court in which such proceeding took place. No petition for
review or for habeas corpus shall be entertained if the
validity of the order has been previously determined in any
civil or criminal proceeding, unless the petition presents
grounds which the court finds could not have been presented in
such prior proceeding, or the court finds that the remedy
provided by such prior proceeding was inadequate or ineffective
to test the validity of the order.
[(d)(1) A petition for review or for habeas corpus on
behalf of an alien against whom a final order of deportation
has been issued pursuant to section 242A(b) may challenge
only--
[(A) whether the alien is in fact the alien described
in the order;
[(B) whether the alien is in fact an alien described
in section 242A(b)(2);
[(C) whether the alien has been convicted of an
aggravated felony and such conviction has become final;
and
[(D) whether the alien was afforded the procedures
required by section 242A(b)(4).
[(2) No court shall have jurisdiction to review any issue
other than an issue described in paragraph (1).]
judicial review of orders of deportation, exclusion, and special
exclusion
Sec. 106. (a) Applicable Provisions.--Except as provided in
subsection (b), judicial review of a final order of exclusion
or deportation is governed only by chapter 158 of title 28 of
the United States Code, but in no such review may a court order
the taking of additional evidence pursuant to section 2347(c)
of title 28, United States Code.
(b) Requirements.--(1)(A) A petition for judicial review
must be filed not later than 30 days after the date of the
final order of exclusion or deportation, except that in the
case of any specially deportable criminal alien (as defined in
section 242(k)), there shall be no judicial review of any final
order of deportation.
(B) The alien shall serve and file a brief in connection
with a petition for judicial review not later than 40 days
after the date on which the administrative record is available,
and may serve and file a reply brief not later than 14 days
after service of the brief of the Attorney General, and the
court may not extend these deadlines except upon motion for
good cause shown.
(C) If an alien fails to file a brief in connection with a
petition for judicial review within the time provided in this
paragraph, the Attorney General may move to dismiss the appeal,
and the court shall grant such motion unless a manifest
injustice would result.
(2) A petition for judicial review shall be filed with the
court of appeals for the judicial circuit in which the special
inquiry officer completed the proceedings.
(3) The respondent of a petition for judicial review shall
be the Attorney General. The petition shall be served on the
Attorney General and on the officer or employee of the
Immigration and Naturalization Service in charge of the Service
district in which the final order of exclusion or deportation
was entered. Service of the petition on the officer or employee
does not stay the deportation of an alien pending the court's
decision on the petition, unless the court orders otherwise.
(4)(A) Except as provided in paragraph (5)(B), the court of
appeals shall decide the petition only on the administrative
record on which the order of exclusion or deportation is based
and the Attorney General's findings of fact shall be conclusive
unless a reasonable adjudicator would be compelled to conclude
to the contrary.
(B) The Attorney General's discretionary judgment whether
to grant relief under section 212 (c) or (i), 244 (a) or (d),
and 245 shall be conclusive and shall not be subject to review.
(C) The Attorney General's discretionary judgment whether
to grant relief under section 208(a) shall be conclusive unless
manifestly contrary to law and an abuse of discretion.
(5)(A) If the petitioner claims to be a national of the
United States and the court of appeals finds from the pleadings
and affidavits that no genuine issue of material fact about the
petitioner's nationality is presented, the court shall decide
the nationality claim.
(B) If the petitioner claims to be a national of the United
States and the court of appeals finds that a genuine issue of
material fact about the petitioner's nationality is presented,
the court shall transfer the proceeding to the district court
of the United States for the judicial district in which the
petitioner resides for a new hearing on the nationality claim
and a decision on that claim as if an action had been brought
in the district court under section 2201 of title 28, United
States Code.
(C) The petitioner may have the nationality claim decided
only as provided in this section.
(6)(A) If the validity of an order of deportation has not
been judicially decided, a defendant in a criminal proceeding
charged with violating subsection (d) or (e) of section 242 may
challenge the validity of the order in the criminal proceeding
only by filing a separate motion before trial. The district
court, without a jury, shall decide the motion before trial.
(B) If the defendant claims in the motion to be a national
of the United States and the district court finds that no
genuine issue of material fact about the defendant's
nationality is presented, the court shall decide the motion
only on the administrative record on which the deportation
order is based. The administrative findings of fact are
conclusive if supported by reasonable, substantial, and
probative evidence on the record considered as a whole.
(C) If the defendant claims in the motion to be a national
of the United States and the district court finds that a
genuine issue of material fact about the defendant's
nationality is presented, the court shall hold a new hearing on
the nationality claim and decide that claim as if an action had
been brought under section 2201 of title 28, United States
Code.
(D) If the district court rules that the deportation order
is invalid, the court shall dismiss the indictment. The United
States Government may appeal the dismissal to the court of
appeals for the appropriate circuit within 30 days. The
defendant may not file a petition for review under this section
during the criminal proceeding. The defendant may have the
nationality claim decided only as provided in this section.
(7) This subsection--
(A) does not prevent the Attorney General, after a
final order of deportation has been issued, from
detaining the alien under section 242(c);
(B) does not relieve the alien from complying with
subsection (d) or (e) of section 242; and
(C) except as provided in paragraph (3), does not
require the Attorney General to defer deportation of
the alien.
(8) The record and briefs do not have to be printed. The
court of appeals shall review the proceeding on a typewritten
and on typewritten briefs.
(c) Requirements for Petition.--A petition for review of an
order of exclusion or deportation shall state whether a court
has upheld the validity of the order, and, if so, shall state
the name of the court, the date of the court's ruling, and the
kind of proceeding.
(d) Review of Final Orders.--
(1) A court may review a final order of exclusion or
deportation only if--
(A) the alien has exhausted all
administrative remedies available to the alien
as a matter of right; and
(B) another court has not decided the
validity of the order, unless, subject to
paragraph (2), the reviewing court finds that
the petition presents grounds that could not
have been presented in the prior judicial
proceeding or that the remedy provided by the
prior proceeding was inadequate or ineffective
to test the validity of the order.
(2) Nothing in paragraph (1)(B) may be construed as
creating a right of review if such review would be
inconsistent with subsection (e), (f), or (g), or any
other provision of this section.
(e) No Judicial Review for Orders of Deportation or
Exclusion Entered Against Certain Criminal Aliens.--
Notwithstanding any other provision of law, any order of
exclusion or deportation against an alien who is excludable or
deportable by reason of having committed any criminal offense
described in subparagraph (A)(iii), (B), (C), or (D) of section
241(a)(2), or two or more offenses described in section
241(a)(2)(A)(ii), at least two of which resulted in a sentence
or confinement described in section 241(a)(2)(A)(i)(II), is not
subject to review by any court.
(f) Limited Review for Special Exclusion and Document
Fraud.--(1) Notwithstanding any other provision of law, except
as provided in this subsection, no court shall have
jurisdiction to review any individual determination or to hear
any other cause of action or claim arising from or relating to
the implementation or operation of sections 208(e),
212(a)(6)(iii), 235(d), and 235(e).
(2)(A) Except as provided in this subsection, there shall
be no judicial review of--
(i) a decision by the Attorney General to invoke the
provisions of section 235(e);
(ii) the application of section 235(e) to individual
aliens, including the determination made under
paragraph (5); or
(iii) procedures and policies adopted by the Attorney
General to implement the provisions of section 235(e).
(B) Without regard to the nature of the action or claim, or
the identity of the party or parties bringing the action, no
court shall have jurisdiction or authority to enter
declaratory, injunctive, or other equitable relief not
specifically authorized in this subsection, or to certify a
class under Rule 23 of the Federal Rules of Civil Procedure.
(3) Judicial review of any cause, claim, or individual
determination made or arising under or relating to section
208(e) 212(a)(6)(iii), 235(d), or 235(e) shall only be
available in a habeas corpus proceeding, and shall be limited
to determinations of--
(A) whether the petitioner is an alien;
(B) whether the petitioner was ordered specially
excluded; and
(C) whether the petitioner can prove by a
preponderance of the evidence that he or she is an
alien lawfully admitted for permanent residence and is
entitled to such further inquiry as is prescribed by
the Attorney General pursuant to section 235(e)(6).
(4)(A) In any case where the court determines that the
petitioner--
(i) is an alien who was not ordered specially
excluded under section 235(e), or
(ii) has demonstrated by a preponderance of the
evidence that he or she is a lawful permanent resident,
the court may order no remedy or relief other than to require
that the petitioner be provided a hearing in accordance with
section 236 or a determination in accordance with section
235(c) or 273(d).
(B) Any alien who is provided a hearing under section 236
pursuant to these provisions may thereafter obtain judicial
review of any resulting final order of exclusion pursuant to
this section.
(5) In determining whether an alien has been ordered
specially excluded under section 235(e), the court's inquiry
shall be limited to whether such an order in fact was issued
and whether it relates to the petitioner. There shall be no
review of whether the alien is actually excludable or entitled
to any relief from exclusion.
(g) No Collateral Attack.--In any action brought for the
assessment of penalties for improper entry or reentry of an
alien under section 275 or 276, no court shall have
jurisdiction to hear claims attacking the validity or orders of
exclusion, special exclusion, or deportation entered under
section 235, 236, or 242.
TITLE II--IMMIGRATION
CHAPTER 1--SELECTION SYSTEM
worldwide level of immigration
Sec. 201. (a) In General.--Exclusive of aliens described in
subsection (b), aliens born in a foreign state or dependent
area who may be issued immigrant visas or who may otherwise
acquire the status of an alien lawfully admitted to the United
States for permanent residence are limited to--
* * * * * * *
(c) Worldwide Level of Family-Sponsored Immigrants.--(1)(A)
The worldwide level of family-sponsored immigrants under this
subsection for a fiscal year is, subject to subparagraph (B),
equal to--
(i) 480,000, minus
[(ii) the number computed under paragraph (2), plus]
(ii) the sum of the number computed under paragraph
(2) and the number computed under paragraph (4), plus
(iii) the number (if any) computed under paragraph
(3).
* * * * * * *
(3)(A) The number computed under this paragraph for fiscal
year 1992 is zero.
* * * * * * *
(4) The number computed under this paragraph for a fiscal
year is the number of aliens who were paroled into the United
States under section 212(d)(5) in the second preceding fiscal
year and who did not depart from the United States within 365
days.
(5) If any alien described in paragraph (4) is subsequently
admitted as an alien lawfully admitted for permanent residence,
such alien shall not again be considered for purposes of
paragraph (1).
* * * * * * *
numerical limitation to any single foreign state
Sec. 202. (a) Per Country Level.--
(1) Nondiscrimination.--(A) Except as specifically
provided in paragraph (2) and in sections 101(a)(27),
201(b)(2)(A)(i), and 203, no person shall receive any
preference or priority or be discriminated against in
the issuance of an immigrant visa because of the
person's race, sex, nationality, place of birth, or
place of residence.
(B) Nothing in this paragraph shall be construed to
limit the authority of the Secretary of State to
determine the procedures for the processing of
immigrant visa applications or the locations where such
applications will be processed.
* * * * * * *
(e) Special Rules for Countries at Ceiling.--If it is
determined that the total number of immigrant visas made
available under subsections (a) and (b) of section 203 to
natives of any single foreign state or dependent area will
exceed the numerical limitation specified in subsection (a)(2)
in any fiscal year, in determining the allotment of immigrant
visa numbers to natives under subsections (a) and (b) of
section 203, visa numbers with respect to natives of that state
or area shall be allocated (to the extent practicable and
otherwise consistent with this section and section 203) in a
manner so that--
(1) the ratio of the visa numbers made available
under section 203(a) to the visa numbers made available
under section 203(b) is equal to the ratio of the
worldwide level of immigration under section 201(c) to
such level under section 201(d);
* * * * * * *
(3) the proportion of the visa numbers made available
under each of paragraphs (1) through (5) of section
203(b) is equal to the ratio of the total number of
visas made available under the respective paragraph to
the total number of visas made available under section
203(b).
Nothing in this subsection shall be construed as limiting the
number of visas that may be issued to natives of a foreign
state or dependent area under section 203(a) or 203(b) if there
is insufficient demand for visas for such natives under section
203(b) or 203(a), respectively, or as limiting the number of
visas that may be issued under section 203(a)(2)(A) pursuant to
subsection (a)(4)(A).
(f)(1) For purposes of subsection (a)(2), an immigrant visa
shall be considered to have been made available in a fiscal
year to any alien who is not an alien lawfully admitted for
permanent residence but who was paroled into the United States
under section 212(d)(5) in the second preceding fiscal year and
who did not depart from the United States within 365 days.
(2) If any alien described in paragraph (1) is subsequently
admitted as an alien lawfully admitted for permanent residence,
an immigrant visa shall not again be considered to have been
made available for purposes of subsection (a)(2).
* * * * * * *
asylum procedure
Sec. 208. (a) [The], (1) Except as provided in paragraph
(2), the Attorney General shall establish a procedure for an
alien physically present in the United States or at a land
border or port of entry, irrespective of such alien's status,
to apply for asylum, and the alien may be granted asylum in the
discretion of the Attorney General if the Attorney General
determines that such alien is a refugee within the meaning of
section 101(a)(42)(A).
(2)(A) An application for asylum filed for the first time
during an exclusion or deportation proceeding shall not be
considered if the proceeding was commenced more than one year
after the alien's entry or admission into the United States.
(B) An application for asylum may be considered,
notwithstanding subparagraph (A), if the applicant shows good
cause for not having filed within the specified period of time.
* * * * * * *
[(e) An applicant for asylum is not entitled to employment
authorization except as may be provided by regulation in the
discretion of the Attorney General.]
(e)(1) Notwithstanding subsection (a), any alien who, in
seeking entry to the United States or boarding a common carrier
for the purpose of coming to the United States, presents any
document which, in the determination of the immigration
officer, is fraudulent, forged, stolen, or inapplicable to the
person presenting the document, or otherwise contains a
misrepresentation of a material fact, may not apply for or be
granted asylum, unless presentation of the document was
necessary to depart from a country in which the alien has a
credible fear of persecution, or from which the alien has a
credible fear of return to persecution, and the alien traveled
from such country directly to the United States.
(2) Notwithstanding subsection (a), an alien who boards a
common carrier for the purpose of coming to the United States
through the presentation of any document which relates or
purports to relate to the alien's eligibility to enter the
United States, and who fails to present such document to an
immigration officer upon arrival at a port of entry into the
United States, may not apply for or be granted asylum, unless
presentation of such document was necessary to depart from a
country in which the alien has a credible fear of persecution,
or from which the alien has a credible fear of return to
persecution, and the alien traveled from such country directly
to the United States.
(3) Notwithstanding subsection (a), an alien described in
section 235(d)(3) may not apply for or be granted asylum,
unless the alien traveled directly from a country in which the
alien has a credible fear of persecution, or from which the
alien has a credible fear of return to persecution.
(4) Notwithstanding paragraph (1), (2), or (3), the
Attorney General may, under extraordinary circumstances, permit
an alien described in any such paragraph to apply for asylum.
(5)(A) When an immigration officer had determined that an
alien has sought entry under either of the circumstances
described in paragraph (1) or (2), or is an alien described in
section 235(d)(3), or is otherwise an alien subject to the
special exclusion procedure of section 235(e), and the alien
has indicated a desire to apply for asylum or for withholding
of deportation under section 243(h), the immigration officer
shall refer the matter to an asylum officer.
(B) Such asylum officer shall interview the alien, in
person or by video conference, to determine whether the alien
has a credible fear of persecution (or of return to
persecution) in or from--
(i) the country of such alien's nationality or, in
the case of a person having no nationality, the country
in which such alien last habitually resided, and
(ii) in the case of an alien seeking asylum who has
sought entry under either of the circumstances
described in paragraph (1) or (2), or who is described
in section 235(d)(3), the country in which the alien
was last present prior to attempting entry into the
United States.
(C) If the officer determines that the alien does not have
a credible fear of persecution in (or of return to persecution
from) the country or countries referred to in subparagraph (B),
the alien may be specially excluded and deported in accordance
with section 235(e).
(D) The Attorney General shall provide by regulation for
the prompt supervisory review of a determination under
subparagraph (C) that an alien physically present in the United
States does not have a credible fear of persecution in (or of
return to persecution from) the country or countries referred
to in subparagraph (B).
(E) The Attorney General shall provide information
concerning the procedure described in this paragraph to persons
who may be eligible. An alien who is eligible for such
procedure pursuant to subparagraph (A) may consult with a
person or persons of the alien's choosing prior to the
procedure or any review thereof, in accordance with regulations
prescribed by the Attorney General. Such consultation shall be
at no expense to the Government and shall not delay the
process.
(6) An alien who has been determined under the procedure
described in paragraph (5) to have a credible fear of
persecution shall be taken before a special inquiry officer for
a hearing in accordance with section 236.
(7) As used in this subsection, the term ``asylum officer''
means an immigration officer who--
(A) has had professional training in country
conditions, asylum law, and interview techniques; and
(B) is supervised by an officer who meets the
condition in subparagraph (A).
(8) As used in this section, the term ``credible fear of
persecution'' means that--
(A) there is a substantial likelihood that the
statements made by the alien in support of the alien's
claim are true; and
(B) there is a significant possibility, in light of
such statements and of country conditions, that the
alien could establish eligibility as a refugee within
the meaning of section 101(a)(42)(A).
(f)(1) An applicant for asylum may not engage in employment
in the United States unless such applicant has submitted an
application for employment authorization to the Attorney
General and, subject to paragraph (2), the Attorney General has
granted such authorization.
(2) The Attorney General may deny any application for, or
suspend or place conditions on any grant of, authorization for
any applicant for asylum to engage in employment in the United
States.
* * * * * * *
special agricultural workers
Sec. 210. (a) Lawful Residence.--
(1) In general.--The Attorney General shall adjust
the status of an alien to that of an alien lawfully
admitted for temporary residence if the Attorney
General determines that the alien meets the following
requirements:
* * * * * * *
(b) Applications for Adjustment of Status.--
(1) To Whom may be made.--
(A) Within the united states.--The Attorney
General shall provide that applications for
adjustment of status under subsection (a) may
be filed--
* * * * * * *
6. Confidentiality of information.--Neither the
Attorney General, nor any other official or employee of
the Department of Justice, or bureau or agency thereof,
may--
(A) use the information furnished pursuant to
an application filed under this section for any
purpose other than to make a determination on
the application including a determination under
subparagraph (a)(3)(B), or for enforcement of
paragraph (7).
(B) make any publication whereby the
information furnished by any particular
individual can be identified, or
(C) permit anyone other than the sworn
officers and employees of the Department or
bureau or agency or, with respect to
applications filed with a designated entity,
that designated entity, to examine individual
applications[.],
except that the Attorney General shall provide
information furnished under this section to a
duly recognized law enforcement entity in
connection with a criminal investigation or
prosecution, when such information is requested
in writing by such entity, or to an official
coroner for purposes of affirmatively
identifying a deceased individual (whether or
not such individual is deceased as a result of
a crime).
* * * * * * *
CHAPTER 2--QUALIFICATIONS FOR ADMISSION OF ALIENS; TRAVEL CONTROL OF
CITIZENS AND ALIENS
General Classes of Aliens Ineligible to Receive Visas and Excluded from
Admission; Waivers of Inadmissibility
Sec. 212. (a) Classes of Excludable Aliens.--Except as
otherwise provided in this Act, the following describes classes
of excludable aliens who are ineligible to receive visas and
who shall be excluded from admission into the United States:
(1) Health-related grounds.--
(A) In general.--Any alien--
(i) who is determined (in accordance
with regulations prescribed by the
Secretary of Health and Human Services)
to have a communicable disease of
public health significance, which shall
include infection with the etiologic
agent for acquired immune deficiency
syndrome,
(ii) who is determined (in accordance
with regulations prescribed by the
Secretary of Health and Human Services
in consultation with the Attorney
General)--
(I) to have a physical or
mental disorder and behavior
associated with the disorder
that may pose, or has posed, a
threat to the property, safety,
or welfare of the alien or
others, [or]
(II) to have had a physical
or mental disorder and a
history of behavior associated
with the disorder, which
behavior has posed a threat to
the property, safety, or
welfare of the alien or others
and which behavior is likely to
recur or to lead to other
harmful behavior, or
(iii) who is determined (in
accordance with regulations prescribed
by the Secretary of Health and Human
Services) to be a drug abuser or
addict, or
(iv) who seeks admission as a lawful
permanent resident, or who seeks
adjustment of status to that of an
alien lawfully admitted for permanent
residence, and who has failed to
present documentation showing that the
alien has been vaccinated against
vaccine-preventable diseases (including
mumps, measles, rubella, polio,
tetanus, diphtheria toxoids, pertussis,
haemophilus-influenza type B, hepatitis
type B, and any other diseases
specified as vaccine-preventable
diseases by the Advisory Committee on
Immunization Practices),
* * * * * * *
(3) Security and related grounds.--
(A) In general.--Any alien who a consular
officer of the Attorney General knows, or has
reasonable ground to believe, seeks to enter
the United States to engage solely,
principally, or incidentally in--
* * * * * * *
(B) Terrorist activities.--
(i) In general.--Any alien who--
(I) has engaged in a
terrorist activity, [or]
(II) a consular officer or
the Attorney General knows, or
has reasonable ground to
believe, is likely to engage
after entry in any terrorist
activity (as defined in clause
(iii)), or
* * * * * * *
(III) has, under circumstances indicating an intention to
cause death or serious bodily harm, incited terrorism, engaged
in targeted racial vilification, or advocated the overthrow of
the United States Government or death or serious bodily harm to
any United States citizen or United States Government official,
* * * * * * *
(iii) Engage in terrorist activity
defined.--As used in this Act, the term
``engage in terrorist activity'' means
to commit, in an individual capacity or
as a member of an organization, an act
of terrorist activity or an act which
the actor knows, or reasonably should
know, affords material support to any
individual, organization, or government
in conducting a terrorist activity at
any time, including any of the
following acts:
(I) The preparation or
planning of a terrorist
activity.
(II) The gathering of
information on potential
targets for terrorist activity.
(III) The providing of any
type of material support,
including a safe house,
transportation, communications,
funds, false documentation or
identification, weapons,
explosives, or training, to any
individual the actor knows or
has reason to believe has
committed or plans to commit a
terrorist activity.
* * * * * * *
(6) Illegal entrants and immigration violators.--
(A) Aliens previously deported.--Any alien
who has been excluded from admission and
deported and who again seeks admission within
[one year] five years of the date of such
deportation, or within 20 years of the date of
any second or subsequent deportation, is
excludable, unless prior to the alien's
reembarkation at a place outside the United
States or attempt to be admitted from foreign
contiguous territory the Attorney General has
consented to the alien's reapplying for
admission.
(B) Certain aliens previously removed.--Any
alien who--
(i) has been arrested and deported,
(ii) has departed the United States
while an order of deportation is
outstanding,
[(ii)] (iii) has fallen into distress
and has been removed pursuant to this
or any prior Act,
[(iii)] (iv) has been removed as an
alien enemy, or
[(iv)] (v) has been removed at
Government expense in lieu of
deportation pursuant to [section
242(b)], section 242(b)(1) and (a) who
seeks admission within 5 years of the
date of such deportation or removal,
[or] (b) who seeks admission within 20
years in the case of an alien convicted
of an aggravated felony, or (c) who
seeks admission within 20 years of a
second or subsequent deportation or
removal, is excludable, unless before
the date of the alien's embarkation or
reembarkation at a place outside the
United States or attempt to be admitted
from foreign contiguous territory the
Attorney General has consented to the
alien's applying or reapplying for
admission.
[(C) Misrepresentation]. (C) Fraud,
misrepresentation, and failure to present
documents--
(i) In general.--Any alien who, by
fraud or willfully misrepresenting a
material fact, seeks to procure (or has
sought to procure or has procured) a
visa, other documentation, or entry
into the United States or other benefit
provided under this Act is excludable.
(ii) Waiver authorized.--For
provision authorizing waiver of clause
(i), see subsection (i).
(iii) Fraud, misrepresentation, and
failure to present documents.--
(I) Any alien who, in seeking
entry to the United States or
boarding a common carrier for
the purpose of coming to the
United States, presents any
document which, in the
determination of the
immigration officer, is forged,
counterfeit, altered, falsely
made, stolen, or inapplicable
to the person presenting the
document, or otherwise contains
a misrepresentation of a
material fact, is excludable.
(II) any alien who is
required to present a document
relating to the alien's
eligibility to enter the United
States prior to boarding a
common carrier for the purpose
of coming to the United States
and who fails to present such
document to an immigration
officer upon arrival at a port
of entry into the United States
is excludable.
* * * * * * *
(8) Ineligible for citizenship.--
(A) In general.--Any immigrant who is
permanently ineligible to citizenship is
excludable.
(B) Draft evaders.--Any person who has
departed from or who has remained outside the
United States to avoid or evade training or
service in the armed forces in time of war or a
period declared by the President to be a
national emergency is excludable, except that
this subparagraph shall not apply to an alien
who at the time of such departure was a
nonimmigrant and who is seeking to reenter the
United States as a nonimmigrant.
(9) Uncertified foreign health-care workers.--(A) Any
alien who seeks to enter the United States for the
purpose of performing labor as a health-care worker,
other than a physician, is excludable unless the alien
presents to the consular officer, or, in the case of an
adjustment of status, the Attorney General, a
certificate from the Commission on Graduates of Foreign
Nursing Schools, or a certificate from an equivalent
independent credentialing organization approved by the
Attorney General in consultation with the Secretary of
Health and Human Services, verifying that--
(i) the alien's education, training, license,
and experience--
(I) meet all applicable statutory and
regulatory requirements for entry into
the United States under the
classification specified in the
application;
(II) are comparable with that
required for an American health-care
worker of the same type; and
(III) are authentic and, in the case
of a license, unencumbered;
(ii) the alien has the level of competence in
oral and written English considered by the
Secretary of Health and Human Services, in
consultation with the Secretary of Education,
to be appropriate for health care work of the
kind in which the alien will be engaged, as
shown by an appropriate score on one or more
nationally recognized, commercially available,
standardized assessments of the applicant's
ability to speak and write; and
(iii) if a majority of States licensing the
profession in which the alien intends to work
recognize a test predicting the success on the
profession's licensing and certification
examination, the alien has passed such a test.
(B) For purposes of subparagraph (A)(ii),
determination of the standardized tests required and of
the minimum scores that are appropriate are within the
sole discretion of the Secretary of Health and Human
Services and are not subject to further administrative
or judicial review.
[(9)] (10) Miscellaneous.--
(A) Practicing polygamists.--Any immigrant
who is coming to the United States to practice
polygamy is excludable.
[(c) Aliens lawfully admitted for permanent residence who
temporarily proceeded abroad voluntarily and not under an order
of deportation, and who are returning to a lawfully
unrelinquished domicile of seven consecutive years, may be
admitted in the discretion of the Attorney General without
regard to the provisions of subsection (a) (other than
paragraphs (3) and [(9)(C)](10)(C)). Nothing contained in this
subsection shall limit the authority of the Attorney General to
exercise the discretion vested in him under section 211(b). The
first sentence of this subsection shall not apply to an alien
who has been convicted of one or more aggravated felonies and
has served for such felony or felonies a term of imprisonment
of at least 5 years.]
(c)(1) Subject to paragraphs (2) through (5), an alien who
is and has been lawfully admitted for permanent residence for
at least 5 years, who has resided in the United States
continuously for 7 years after having been lawfully admitted,
and who is returning to such residence after having temporarily
proceeded abroad voluntarily and not under an order of
deportation, may be admitted in the discretion of the Attorney
General without regard to the provisions of subsection (a)
(other than paragraphs (3) and (9)(C)).
(2) For purposes of this subsection, any period of
continuous residence shall be deemed to end when the alien is
placed in proceedings to exclude or deport the alien from the
United States.
(3) Nothing contained in this subsection shall limit the
authority of the Attorney General to exercise the discretion
authorized under section 211(b).
(4) Paragraph (1) shall not apply to an alien who has been
convicted of one or more aggravated felonies and has been
sentenced for such felony or felonies to a term or terms of
imprisonment totalling, in the aggregate, at least 5 years.
(5) This subsection shall apply only for an alien in;
proceedings under 236.
(d)(1) The Attorney General shall determine whether a
ground for exclusion exists with respect to nonimmigrant
described in section 101(a)(15)(S). The Attorney General, in
the Attorney General's discretion, may waive the application of
subsection (a) (other than paragraph (3)(E)) in the case of a
nonimmigrant described in section 101(a)(15)(S), if the
Attorney General considers it to be in the national interest to
do so. Nothing in this section shall be regarded as prohibiting
the Immigration and Naturalization Service from instituting
deportation proceedings against an alien admitted as a
nonimmigrant under section 101(a (15)(S) for conduct committed
after the alien's admission into the United States, or for
conduct or a condition that was not disclosed to the Attorney
General prior to the alien's admission as a nonimmigrant under
section 101(a)(15)(S).
* * * * * * *
(5)(A) The Attorney General may, except as provided in
subparagraph (B) or in section 214(f), in his discretion parole
into the United States temporarily under such conditions as he
may prescribe [for emergent reasons or for reasons deemed
strictly in the public interest] on a case-by-case basis for
urgent humanitarian reasons or significant public benefit any
alien applying for admission to the United States, but such
parole of such alien shall not be regarded as an admission of
the alien and when the purposes of such parole shall, in the
opinion of the Attorney General, have been served the alien
shall forthwith return or be returned to the custody from which
he was paroled and thereafter his case shall continue to be
dealt with in the same manner as that of any other applicant
for admission to the United States.
* * * * * * *
(g) The Attorney General may waive the application of--
(1) subsection (a)(1)(A)(i) in the case of any alien
who--
(A) is the spouse or the unmarried son or
daughter, or the minor unmarried lawfully
adopted child, of a United States citizen, or
of an alien lawfully admitted for permanent
residence, or of an alien who has been issued
an immigrant visa, or
(B) has a son or daughter who is a United
States citizen, or an alien lawfully admitted
for permanent residence, or an alien who has
been issued an immigrant visa, [or]
(2) subsection (a)(1)(A)(ii) in the case of any
alien, or
(3) subsection (a)(1)(A)(iv) in the case of any alien
described in that subsection--
(A) who receives vaccination against the
vaccine-preventable diseases described in that
subsection for which the alien cannot present
documentation showing that the alien had been
vaccinated previously, or
(B) for whom a civil surgeon, medical
officer, or panel physician (as such terms are
defined in section 34.2 of title 42, Code of
Federal Regulations) certifies, in accordance
with such regulations as the Secretary of
Health and Human Services may prescribe, that
vaccination against such diseases would not be
medically appropriate,
* * * * * * *
(p)(1) Any lawfully admitted nonimmigrant who remains in
the United States for more than 60 days beyond the period
authorized by the Attorney General shall be ineligible for
additional nonimmigrant or immigrant visas (other than visas
available for spouses of United States citizens or aliens
lawfully admitted for permanent residence) until the date that
is--
(A) 3 years after the date the nonimmigrant departs
the United States in the case of a nonimmigrant not
described in paragraph (2); or
(B) 5 years after the date the nonimmigrant departs
the United States in the case of a nonimmigrant who
without reasonable cause fails or refuses to attend or
remain in attendance at a proceeding to determine the
nonimmigrant's deportability.
(2)(A) Paragraph (1) shall not apply to any lawfully
admitted nonimmigrant who is described in paragraph (1)(A) and
who demonstrates good cause for remaining in the United States
for the entirety of the period (other than the first 60 days)
during which the nonimmigrant remained in the United States
without the authorization of the Attorney General.
(B) A final order of deportation shall not be stayed on the
basis of a claim of good cause made under this subsection.
(3) The Attorney General shall by regulation establish
procedures necessary to implement this section.
* * * * * * *
admission of nonimmigrants
Sec. 214. (a)(1) The admission to the United States of any
alien as a nonimmigrant shall be for such time and under such
conditions as the Attorney General may by regulations
prescribe, including when he deems necessary the giving of a
bond with sufficient surety in such sum and containing such
conditions as the Attorney General shall prescribe, to insure
that at the expiration of such time or upon failure to maintain
the status under which he was admitted, or to maintain any
status subsequently acquired under section 248, such alien will
depart from the United States. No alien admitted to Guam
without a visa pursuant to section 2121(l) may be authorized to
enter or stay in the United States other than in Guam or to
remain in Guam for a period exceeding fifteen days from date of
admission to Guam. No alien admitted to the United States
without a visa pursuant to section 217 may be authorized to
remain in the United States as a nonimmigrant visitor for a
period exceeding 90 days from the date of admission.
* * * * * * *
(j)(1) The number of aliens who may be provided a visa as
nonimmigrants under section 101(a)(15)(S)(i) in any fiscal year
may not exceed [100] 200. The number of aliens who may be
provided a visa as nonimmigrants under section
101(a)(15)(S)(ii) in any fiscal year may not exceed [25] 50.
* * * * * * *
CHAPTER 3--ISSUANCE OF ENTRY DOCUMENTS
* * * * * * *
applications for visas
Sec. 222. (a) Every alien applying for an immigrant visa
and for alien registration shall make application therefor in
such form and manner and at such place as shall be by
regulations prescribed. In the application the alien shall
state his full and true name, and any other name which he has
used or by which he has been known; age and sex; the date and
place of his birth; and such additional information necessary
to the identification of the applicant and the enforcement of
the immigration and nationality laws as may be by regulations
prescribed.
* * * * * * *
(f) The records of the Department of State and of
diplomatic and consular offices of the United States pertaining
to the issuance or refusal of visas or permits to enter the
United States shall be considered confidential and shall be
used only for the formulation, amendment, administration, or
enforcement of the immigration, nationality, and other laws of
the United States, except that in the discretion of the
Secretary of State certified copies of such records may be made
available to a court which certifies that the information
contained in such records is needed by the court in the
interest of the ends of justice in a case pending before the
court.
(g)(1) In the case of an alien who has entered and remained
in the United States beyond the authorized period of stay, the
alien's nonimmigrant visa shall thereafter be invalid for
reentry into the United States.
(2) An alien described in paragraph (1) shall be ineligible
to be readmitted to the United States as a nonimmigrant
subsequent to the expiration of the alien's authorized period
of stay, except--
(A) on the basis of a visa issued in a consular
office located in the country of the alien's
nationality (or, if there is no office in such country,
in such other consular office as the Secretary of State
shall specify); or
(B) where extraordinary circumstances are found by
the Secretary of State to exist.
* * * * * * *
CHAPTER 4--PROVISIONS RELATING TO ENTRY AND EXCLUSION
* * * * * * *
inspection by immigration officers
Sec. 235. (a) * * *
* * * * * * *
[b](b)(1) Every alien (other than an alien crewman), and
except as otherwise provided in subsection (c) of this section
and in section 273(d), who may not appear to the examining
immigration officer at the port of arrival to be clearly and
beyond a doubt entitled to land shall be detained for further
inquiry to be conducted by a special inquiry officer. The
decision of the examining immigration officer, if favorable to
the admission of any alien, shall be subject to challenge by
any other immigration officer and such challenge shall operate
to take the alien, whose privilege to land is so challenged,
before a special inquiry officer for further inquiry.
(2) If an alien subject to such further inquiry has arrived
from a foreign territory contiguous to the United States,
either at a land port of entry or on the land of the United
States other than at a designated port of entry, the alien may
be returned to that territory pending the inquiry.
* * * * * * *
(d)(1) Subject to paragraph (2), any alien who has not been
admitted to the United States, and who is excludable under
section 212(a)(6)(C)(iii) or who is an alien described in
paragraph (3), is ineligible for withholding of deportation
pursuant to section 243(h), and may not apply therefor or for
any other relief under this Act, except that an alien found to
have a credible fear of persecution or of return to persecution
in accordance with section 208(e) shall be taken before a
special inquiry officer for exclusion proceedings in accordance
with section 236 and may apply for asylum, withholding of
deportation, or both, in the course of such proceedings.
(2) An alien described in paragraph (1) who has been found
ineligible to apply for asylum under section 208(e) may be
returned under the provisions of this section only to a country
in which (or from which) he or she has no credible fear of
persecution (or of return to persecution). If there is no
country to which the alien can be returned in accordance with
the provisions of this paragraph, the alien shall be taken
before a special inquiry officer for exclusion proceedings in
accordance with section 236 and may apply for asylum,
withholding of deportation, or both, in the course of such
proceedings.
(3) Any alien who is excludable under section 212(a), and
who has been brought or escorted under the authority of the
United States--
(A) into the United States, having been on board a vessel
encountered seaward of the territorial sea by officers of the
United States; or
(B) to a port of entry, having been on board a vessel
encountered within the territorial sea or internal waters of
the United States;
shall either be detained on board the vessel on which such
person arrived or in such facilities as are designated by the
Attorney General or paroled in the discretion of the Attorney
General pursuant to section 212(d)(5) pending accomplishment of
the purpose for which the person was brought or escorted into
the United States or to the port of entry, except that no alien
shall be detained on board a public vessel of the United States
without the concurrence of the head of the department under
whose authority the vessel is operating.
(e)(1) Notwithstanding the provisions of subsection (b) of
this section and section 236, the Attorney General may, without
referral to a special inquiry officer or after such a referral,
order the exclusion and deportation of any alien if--
(A) the alien appears to an examining immigration
officer, or to a special inquiry officer if such
referral is made, to be an alien who--
(i) has entered the United States without
having been inspected and admitted by an
immigration officer pursuant to this section,
unless such alien affirmatively demonstrates to
the satisfaction of such immigration officer or
special inquiry officer that he has been
physically present in the United States for an
uninterrupted period of at least two years
since such entry without inspection;
(ii) is excludable under section
212(a)(6)(iii);
(iii) is brought or escorted under the
authority of the United States into the United
States, having been on board a vessel
encountered outside of the territorial waters
of the United States by officers of the United
States;
(iv) is brought or escorted under the
authority of the United States to a port of
entry, having been on board a vessel
encountered within the territorial sea or
internal waters of the United States; or
(v) has arrived on a vessel transporting
aliens to the United States without such alien
having received prior official authorization to
come to, enter, or reside in the United States;
or
(B) the Attorney General has determined that the
numbers or circumstances of aliens en route to or
arriving in the United States, by land, sea, or air,
present an extraordinary migration situation.
(2) As used in this section, the phrase ``extraordinary
migration situation'' means the arrival or imminent arrival in
the United States or its territorial waters of aliens who by
their numbers or circumstances substantially exceed the
capacity for the inspection and examination of such aliens.
(3)(A) Subject to subparagraph (B), the determination of
whether there exists an extraordinary migration situation or
whether to invoke the provisions of paragraph (1)(A) or (B) is
committed to the sole and exclusive discretion of the Attorney
General.
(B) The provisions of this subsection may be invoked under
paragraph (1)(B) for a period not to exceed 90 days, unless,
within such 90-day period or an extension thereof authorized by
this subparagraph, the Attorney General determines, after
consultation with the Committees on the Judiciary of the Senate
and the House of Representatives, that an extraordinary
migration situation continues to warrant such procedures
remaining in effect for an additional 90-day period.
(4) When the Attorney General invokes the provisions of
clause (iii), (iv), or (v) of paragraph (1)(A) or paragraph
(1)(B), the Attorney General may, pursuant to this section and
sections 235(e) and 106(f), suspend, in whole or in part, the
operation of immigration regulations regarding the inspection
and exclusion of aliens.
(5) No alien may be ordered specially excluded under
paragraph (1) if--
(A) Such alien is eligible to seek, and seeks, asylum
under section 208; and
(B) the Attorney General determines, in the procedure
described in section 208(e), that such alien has a
credible fear of persecution on account of race,
religion, nationality, membership in a particular
social group, or political opinion, in the country of
such person's nationality, or in the case of a person
having no nationality, the country in which such person
last habitually resided.
An alien may be returned to a country in which the alien does
not have a credible fear of persecution and from which the
alien does not have a credible fear of return to persecution.
(6) A special exclusion order entered in accordance with
the provisions of this subsection is not subject to
administrative review, except that the Attorney General shall
provide by regulation for prompt review of such an order
against an applicant who claims under oath, or as permitted
under penalty of perjury under section 1746 of title 28, United
States Code, after having been warned of the penalties for
falsely making such claim under such conditions, to be, and
appears to be, lawfully admitted for permanent residence.
(7) A special exclusion order entered in accordance with
the provisions of this subsection shall have the same effect as
if the alien had been ordered excluded and deported pursuant to
section 236, except that judicial review of such an order shall
be available only under section 106(f).
(8) Nothing in this subsection may be construed as
requiring an inquiry before a special inquiry officer in the
case of an alien crewman.
* * * * * * *
exclusions of aliens
Sec. 236. (a) A special inquiry officer shall conduct
proceedings under this section, administer oaths, present and
receive evidence, issue subpoenas, and interrogate, examine,
and cross-examine the alien or witnesses. He shall have
authority in any case to determine whether an arriving alien
who has been detained for further inquiry under section 235
shall be allowed to enter or shall be excluded and deported. *
* *
* * * * * * *
(e)(1) Pending a determination of excludability, the
Attorney General shall take into custody any alien convicted of
an aggravated felony upon release of the alien (regardless of
whether or not such release is on parole, supervised release,
or probation, and regardless of the possibility of rearrest or
further confinement in respect of the same offense.).
(2) Notwithstanding any other provision of this section,
the Attorney General shall not release such felon from custody
unless (A) the Attorney General determines, pursuant to section
3521 of title 18, United States Code, that release from custody
is necessary to provide protection to a witness, a potential
witness, a person cooperating with an investigation into major
criminal activity, or an immediate family member or close
associate of a witness, potential witness, or person
cooperating with such an investigation, and that after such
release the alien would not be a threat to the community, or
(B) the Attorney General determines that the alien may not be
deported because the condition described in section 243(g)
exists.
(f) The Attorney General shall provide by regulation for
the entry by a special inquiry officer of an order of exclusion
and deportation stipulated to by the alien and the Service.
Such an order may be entered without a personal appearance by
the alien before the special inquiry officer. A stipulated
order shall constitute a conclusive determination of the
alien's excludability and deportability from the United States.
immediate deportation of aliens excluded from admission or entering in
violation of law
Sec. 237. (a)(1) Any alien (other than an alien crewman)
arriving in the United States who is excluded under this Act,
shall be immediately deported, in accommodations of the same
class in which he arrived, unless the Attorney General, in an
individual case, in his discretion, concludes that immediate
deportation is not practicable or proper, or unless the alien
is an excluded stowaway who has applied for asylum or
withholding of deportation and whose application has not been
adjudicated or whose application has been denied but who has
not exhausted every appeal right. [Deportation] Subject to
section 235(d)(2), deportation shall be to the country in which
the alien boarded the vessel or aircraft on which he arrived in
the United States, unless the alien boarded such vessel or
aircraft in foreign territory contiguous to the United States
or in any island adjacent thereto or adjacent to the United
States and the alien is not a native, citizen, subject, or
national of, or does not have a residence in, such foreign
contiguous territory or adjacent island, in which case the
deportation shall instead be to the country in which is located
the port at which the alien embarked for such foreign
contiguous territory or adjacent island. The cost of the
maintenance including detention expenses and expenses incident
to detention of any such alien while he is being detained,
shall be borne by the owner or owners of the vessel or aircraft
on which he arrived, except that the cost of maintenance
(including detention expenses and expenses incident to
detention while the alien is being detained prior to the time
he is offered for deportation to the transportation line which
brought him to the United States) shall not be assessed against
the owner or owners of such vessel or aircraft if (A) the alien
was in possession of a valid, unexpired immigrant visa, or (B)
the alien (other than an alien crewman) was in possession of a
valid, unexpired nonimmigrant visa or other document
authorizing such alien to apply for temporary admission to the
United States or an unexpired reentry permit issued to him, and
(i) such application was made within one hundred and twenty
days of the date of issuance of the visa or other document, or
in the case of an alien in possession of a reentry permit,
within one hundred and twenty days of the date on which the
alien was last examined and admitted by the Service, or (ii) in
the event the application was made later than one hundred and
twenty days of the date of issuance of the visa or other
document or such examination and admission, if the owner or
owners of such vessel or aircraft established to the
satisfaction of the Attorney General that the ground of
exclusion could not have been ascertained by the exercise of
due diligence prior to the alien's embarkation, or (C) the
person claimed United States nationality or citizenship and was
in possession of an unexpired United States passport issued to
him by competent authority. Any alien stowaway inspected upon
arrival in the United States is an alien who is excluded within
the meaning of this section. For purposes of this section, the
term ``alien'' includes an excluded stowaway. The provisions of
this section concerning the deportation of an excluded alien
shall apply to the deportation of a stowaway under section
273(d).
* * * * * * *
(2) [If] Subject to section 235(d)(2), if the government of
the country designated in paragraph (1) will not accept the
alien into its territory, the alien's deportation shall be
directed by the Attorney General, in his discretion and without
necessarily giving any priority or preference because of their
order as herein set forth, either to--
* * * * * * *
CHAPTER 5--DEPORTATION; ADJUSTMENT OF STATUS
general classes of deportable aliens
Sec. 241. (a) Classes of Deportable Aliens.--Any alien
(including an alien crewman) in the United States shall, upon
the order of the Attorney General, be deported if the alien is
within one or more of the following classes of deportable
aliens:
(1) Excludable at time of entry or of adjustment of
status or violates status.--
* * * * * * *
(2) Criminal offenses.--
(A) General crimes.--
(i) Crimes of moral turpitude.--Any
alien who--
(I) is convicted of a crime
involving moral turpitude
committed within five years (or
10 years in the case of an
alien provided lawful permanent
resident status under [section
245(i)] )section 245(j)) the
date of entry, and
* * * * * * *
[(5) Public charge.--Any alien who, within five years
after the date of entry, has become a public charge
from causes not affirmatively shown to have arisen
since entry is deportable.
[(b) An alien, admitted as an nonimmigrant under the
provisions of either section 101(a)(15)(A)(i) or
101(a)(15)(G)(i), and who fails to maintain a status under
either of those provisions, shall not be required to depart
from the United States without the approval of the Secretary of
State, unless such alien is subject to deportation under
paragraph (4) of subsection (a).
[(c) Paragraphs (1)(A), (1)(B), (1)(C), (1)(D), and (3)(A)
of subsection (a) (other than so much of paragraph (1) as
relates to a ground of exclusion described in paragraph (2) or
(3) of section 212(a)) shall not apply to a special immigrant
described in section 101(a)(27)(J) based upon circumstances
that existed before the date the alien was provided such
special immigrant status.]
(5) Public charge.--
(A) In general.--Any alien who during the
public charge period becomes a public charge,
regardless of when the cause for becoming a
public charge arises is deportable.
(B) Exceptions.--Subparagraph (A) shall not
apply if the alien is a refugee or has been
granted asylum, or if--
(i) the cause of the alien's becoming
a public charge arose after entry (in
the case of an alien who entered as an
immigrant) or after adjustment to
lawful permanent resident status (in
the case of an alien who entered as a
nonimmigrant), and
(ii) was a physical illness, or
physical injury, so serious the alien
could not work at any job, or a mental
disability that required continuous
hospitalization.
(C) Definitions.--
(i) Public charge period.--For
purposes of subparagraph (A), the term
``public charge period'' means the
period beginning on the date the alien
entered the United States and ending--
(I) for an alien who entered
the United States as an
immigrant, 5 years after entry,
or
(II) for an alien who entered
the United States as a
nonimmigrant, 5 years after the
alien adjusted to permanent
resident status.
(ii) Public charge.--For purposes of
subparagraph (A), the term ``public
charge'' includes any alien who
receives benefits under any program
described in subparagraph (D) for an
aggregate period of more than 12
months.
(D) Programs described.--The programs
described in this subparagraph are the
following:
(i) The aid to families with
dependent children program under title
IV of the Social Security Act.
(ii) The medicaid program under title
XIX of the Social Security Act.
(iii) The food stamp program under
the Food Stamp Act of 1977.
(iv) The supplemental security income
program under title XVI of the Social
Security Act.
(v) Any State general assistance
program.
(vi) Any other program of assistance
funded, in whole or in part, by the
Federal Government or any State or
local government entity, for which
eligibility for benefits is based on
need, except the programs listed as
exceptions in clauses (i) through (vi)
of section 201(a)(1) of the Immigration
Reform Act of 1996.
apprehension and deportation of aliens
Sec. 242. [8 U.S.C. 1252] (a)(1) Pending a determination of
deportability in the case of any alien as provided in
[subsection (b)] subsection (b)(1) of this section, such alien
may, upon warrant of the Attorney General, be arrested and
taken into custody. * * *
* * * * * * *
[(2)(A) The Attorney General shall take into custody any
alien convicted of an aggravated felony upon release of the
alien (regardless of whether or not such release is on parole,
supervised release, or probation, and regardless of the
possibility of rearrest or further confinement in respect of
the same offense). Notwithstanding paragraph (1) or subsections
(c) and (d) but subject to subparagraph (B), the Attorney
General shall not release such felon from custody.
[(B) The Attorney General may not release from custody any
lawfully admitted alien who has been convicted of an aggravated
felony, either before or after a determination of
deportability, unless the alien demonstrates to the
satisfaction of the Attorney General that such alien is not a
threat to be community and that the alien is likely to appear
before any scheduled hearings.]
(2)(A) The Attorney General shall take into custody any
specially deportable criminal alien upon release of the alien
from incarceration and shall deport the alien as expeditiously
as possible. Notwithstanding any other provision of law, the
Attorney General shall not release such felon from custody.
(B) The Attorney General shall have sole and unreviewable
discretion to waive subparagraph (A) fro aliens who are
cooperating with law enforcement authorities or for purposes of
national security.
* * * * * * *
[Except as provided in section 242A(d), the procedure so
prescribed shall be the sole and exclusive procedure for
determining the deportability of an alien under this section.]
(2) The Attorney General shall further provide by
regulation for the entry by a special inquiry officer
of an order of deportation stipulated to by the alien
and the Service. Such an order may be entered without a
personal appearance by the alien before the special
inquiry officer. A stipulated order shall constitute a
conclusive determination of the alien's deportability
from the United States.
(3) The procedures prescribed in this subsection and
in section 242A(c) shall be the sole and exclusive
procedures for determining the deportability of an
alien.
(b)(1) A special inquiry officer shall conduct proceedings
under this section to determine the deportability of any alien,
and shall administer oaths, present and receive evidence issue
subpoenas, interrogate, examine, and cross-examine the alien or
witnesses, and as authorized by the Attorney General, shall
make determinations, including orders of deportation.
Determination of deportability in any case shall be made only
upon a record made in a proceeding before a special inquiry
officer, at which the alien shall have reasonable opportunity
to be present, unless by reason of the alien's mental
incompetency it is impracticable for him to be present, in
which case the Attorney General shall prescribe necessary and
proper safeguards for the rights and privileges of such alien.
If any alien has been given a reasonable opportunity to be
present at a proceeding under this section, and without
reasonable cause fails or refuses to attend or remain in
attendance at such proceeding, the special inquiry officer may
proceed to a determination in like manner as if the alien were
present. In any case or class of cases in which the Attorney
General believes that such procedure would be of aid in making
a determination, he may require specifically or by regulation
that an additional immigration officer shall be assigned to
present the evidence on behalf of the United States and in such
case additional immigration officer shall have authority to
present evidence, and to interrogate, examine and cross-examine
the alien or other witnesses in the proceedings. Nothing in the
preceding sentence shall be construed to diminish the authority
conferred upon the special inquiry officer conducting such
proceedings. No special inquiry officer shall conduct a
proceeding in any case under this section in which he shall
have participated in investigative functions or in which he
shall have participated (except as provided in this subsection)
in prosecuting functions. [Proceedings before a special inquiry
officer acting under the provisions of this section shall be in
accordance with such regulations, not inconsistent with this
Act, as the Attorney General shall prescribe. Such regulations
shall include requirements that are consistent with section
242B and that provide that--]
[(1)] (A) the alien shall be given notice, reasonable
under all the circumstances, of the nature of the
charges against him and of the time and place at which
the proceedings will be held,
[(2)] (B) the alien shall have the privilege of being
represented (at no expense to the Government) by such
counsel, authorized to practice in such proceedings, as
he shall choose.
[(3)] (C) the alien shall have a reasonable
opportunity to examine the evidence against him, to
present on his own behalf, and to cross-examine
witnesses presented by the Government, and
[(4)] (D) no decision of deportability shall be valid
unless it is based upon reasonable, substantial, and
probative evidence.
(4) In any case in which an alien is ordered deported from
the United States under the provisions of this Act, or of any
other law or treaty, the decision of the Attorney General shall
be final.
(5) In the discretion of the Attorney General, and under
such regulations as he may prescribe, deportation proceedings,
including issuance of a warrant of arrest, and a finding of
deportability under this section need not be required in the
case of any alien who admits to belonging to a class of aliens
who are deportable under section 241 if such alien voluntarily
departs from the United States at his own expense, or is
removed at Government expense as hereinafter authorized, unless
the Attorney General has reason to believe that such alien is
deportable under paragraph (2), (3) or (4) of section 241(a).
If any alien who is authorized to depart voluntarily under the
preceding sentence is financially unable to depart at his own
expense and the Attorney General deems his removal to be in the
best interest of the United States, the expense of such removal
may be paid from the appropriation for the enforcement of this
Act. Nothing in this subsection precludes the Attorney General
from authorizing proceedings by video electronic media, by
telephone, or, where a requirement for the alien's appearance
is waived or the alien's absence is agreed to by the parties,
in the absence of the alien. Contested full evidentiary
hearings on the merits may be conducted by telephone only with
the consent of the alien.
[(c)] (c) (1) (other than an alien described in paragraph
(2)) When a final order of deportation under administrative
processes is made against any alien, the Attorney General shall
have a period of six months from the date of such order, or, if
judicial review is had, then from the date of the final order
of the court, within which to effect the alien's departure from
the United States, during which period, at the Attorney
General's discretion, the alien may be detained, released on
bond in an amount and containing such conditions as the
Attorney General may prescribe, or released on such other
conditions as the Attorney General may prescribe. * * *
(2)(A) When a final order of deportation is made against
any specially deportable criminal alien, the Attorney General
shall have a period of 30 days from the later of--
(i) the date of such order, or
(ii) the alien's release from incarceration, within
which to effect the alien's departure from the United
States.
(B) The Attorney General shall have sole and unreviewable
discretion to waive subparagraph (A) for aliens who are
cooperating with law enforcement authorities or for purposes of
national security.
(3) Nothing in this subsection shall be construed as
providing a right enforceable by or on behalf of any alien to
be released from custody or to challenge the alien's
deportation.
* * * * * * *
(f) (1) Should the Attorney General find that any alien has
unlawfully reentered the United States after having previously
departed or been deported pursuant to an order of deportation,
whether before or after the date of enactment of this Act, on
any ground described in any of the paragraphs enumerated in
subsection (e), the previous order of deportation shall be
deemed to be reinstated from its original date and such alien
shall be deported under such previous order at any time
subsequent to such reentry. For the purposes of subsection (e)
the date on which the finding is made that such reinstatement
is appropriate shall be deemed the date of the final order of
deportation.
(2) Any alien who has unlawfully reentered or is found in
the United States after having previously been deported
subsequent to a conviction for any criminal offense covered in
section 241(a)(2) (A)(iii), (B), (C), or (D), or two or more
offenses described in clause (ii) of section 241(a)(2)(A), at
least two of which resulted in a sentence or confinement
described in section 241(a)(2)(A)(i)(II), shall, in addition to
the punishment provided for any other crime, be punished by
imprisonment of not less than 15 years.
* * * * * * *
(k) For purposes of this section, the term ``specially
deportable criminal alien'' means any alien convicted of an
offense described in subparagraph (A)(iii), (B), (C), or (D) of
section 241(a)(2), or two or more offenses described in section
241(a)(2)(A)(ii), at least two of which resulted in a sentence
or confinement described in section 241(a)(2)(A)(i)(II).
expedited deportation of aliens convicted of committing aggravated
felonies
Sec. 242A. (a) Deportation of Criminal Aliens.--
* * * * * * *
(b) Deportation of Aliens Who Are Not Permanent
Residents.--
(1) The Attorney General may, in the case of an alien
described in paragraph (2), determine the deportability
of such alien under section 241(a)(2)(A)(iii) (relating
to conviction of an aggravated felony) and issue an
order of deportation pursuant to the procedures set
forth in this subsection or [section 242(b)] section
242(b)(1).
[(d)] (c) Judicial Deportation.--
[(1) Authority.--Notwithstanding any other provision of
this Act, a United States district court shall have
jurisdiction to enter a judicial order of deportation
at the time of sentencing against an alien whose
criminal conviction causes such alien to be deportable
under section 241(a)(2)(A), if such an order has been
requested by the United States Attorney with the
concurrence of the Commissioner and if the court
chooses to exercise such jurisdiction.]
(1) Authority.--Notwithstanding any other provision
of this Act, a United States district court shall have
jurisdiction to enter a judicial order of deportation
at the time of sentencing against an alien--
(A) whose criminal conviction causes such
alien to be deportable under section
241(a)(2)(A)(iii) (relating to conviction of an
aggravated felony);
(B) who has at any time been convicted of a
violation of section 276 (a) or (b) (relating
to reentry of a deported alien);
(C) who has at any time been convicted of a
violation of section 275 (relating to entry of
an alien at an improper time or place and to
misrepresentation and concealment of facts); or
(D) who is otherwise deportable pursuant to
any of the paragraphs (1) through (5) of
section 241(a).
A United States Magistrate shall have jurisdiction to
enter a judicial order of deportation at the time of
sentencing where the alien has been convicted of a
misdemeanor offense and the alien is deportable under
this Act.
(2) Procedure.--
(A) The United States Attorney shall file
with the United States district court, and
serve upon the defendant and the Service, prior
to commencement of the trial or entry of a
guilty plea a notice of intent to request
judicial deportation.
* * * * * * *
(D)(i) The alien shall have a reasonable
opportunity to examine the evidence against him
or her, to present evidence on his or her own
behalf, and to cross-examine witnesses
presented by the Government.
(ii) The court, for the purposes of
determining whether to enter an order described
in paragraph (1), shall only consider evidence
that would be admissible in proceedings
conducted pursuant to [section 242(b)] section
242(b)(1).
(4) Denial of judicial order.--Denial [without a
decision on the merits] of a request for a judicial
order of deportation shall not preclude the Attorney
General from initiating deportation proceedings
pursuant to section 242 upon the same ground of
deportability or upon any other ground of deportability
provided under section 241(a).
(5) State court finding of deportability.--(A) On
motion of the prosecution or on the court's own motion,
any State court with jurisdiction to enter judgments in
criminal cases is authorized to make a finding that the
defendant is deportable as a specially deportable
criminal alien (as defined in section 242(k)).
(B) The finding of deportability under subparagraph
(A), when incorporated in a final judgment of
conviction, shall for all purposes be conclusive on the
alien and may not be reexamined by any agency or court,
whether by habeas corpus or otherwise. The court shall
notify the Attorney General of any finding of
deportability.
(6) Stipulated judicial order of deportation.--The
United States Attorney, with the concurrence of the
Commissioner, may, pursuant to Federal Rule of Criminal
Procedure 11, enter into a plea agreement which calls
for the alien, who is deportable under this Act, to
waive the right to notice and a hearing under this
section, and stipulate to the entry of a judicial order
of deportation from the United States as a condition of
the plea agreement or as a condition of probation or
supervised release, or both. The United States District
Court, in both felony and misdemeanor cases, and the
United States Magistrate Court in misdemeanors cases,
may accept such a stipulation and shall have
jurisdiction to enter a judicial order of deportation
pursuant to the terms of such stipulation.
deportation procedures
Sec. 242B. (a) Notices.--
(1) Order to show cause.--* * *
* * * * * * *
(3) Form of information.--Each order to show cause or
other notice [under this subsection--
[(A) shall be in English and Spanish, and
[(B) shall specify that the alien may be
represented by an attorney in deportation
proceedings under section 242 and will be
provided, in accordance with subsection (b)(1),
a period of time in order to obtain counsel and
a current list described in subsection (b)(2).]
under this subsection.
* * * * * * *
(b) Securing of Counsel.--
(1) In general.--In order that an alien be permitted
the opportunity to secure counsel before the first
hearing date in proceedings under section 242, the
hearing date shall not be scheduled earlier than 14
days after the service of the order to show cause,
unless the alien requests in writing an earlier hearing
date, except that a hearing may be scheduled as early
as 3 days after the service of the order to show cause
if the alien has been continued in custody subject to
section 242.
* * * * * * *
(3) Rule of construction.--Nothing in this subsection
may be construed to prevent the Attorney General from
proceeding against an alien pursuant to section 242 if
the time period described in paragraph (1) has elapsed
and the alien has failed to secure counsel.
* * * * * * *
(c) Consequences of Failure to Appear.--
(1) In general.--Any alien who, after written notice
required under subsection (a)(2) has been provided to
the alien or the alien's counsel of record, does not
attend a proceeding under section 242, shall be ordered
deported under [section 242(b)(1)] section 242(b)(1)(A)
in absentia if the Service establishes by clear,
unequivocal, and convincing evidence that the written
notice was so provided and that the alien is
deportable. The written notice by the Attorney General
shall be considered sufficient for purposes of this
paragraph if provided at the most recent address
provided under subsection (a)(1)(F).
* * * * * * *
(3) Rescission of order.--Such an order may be
rescinded only--
(A) upon a motion to reopen filed within 180
days after the date of the order of deportation
if the alien demonstrates that the failure to
appear was because of exceptional circumstances
(as defined in subsection (f)(2)), or
(B) upon a motion to reopen filed at any time
if the alien demonstrates that the alien did
not receive notice in accordance with
subsection (a)(2) or the alien demonstrates
that the alien was in Federal or State custody
and did not appear through no fault of the
alien[.], by the special inquiry officer, but
there shall be no stay pending further
administrative or judicial review, unless
ordered because of individually compelling
circumstances.
The filing of the motion to reopen described in
subparagraph (A) or (B) shall stay the deportation of
the alien pending disposition of the motion.
* * * * * * *
(e) Limitation on Discretionary Relief for Failure To
Appear--
(1) At deportation proceedings.--Any alien against
whom a final order of deportation is entered in
absentia under this section and who, at the time of the
notice described in subsection (a)(2), was provided
oral notice, either in the alien's native language or
in another language the alien understands, of the time
and place of the proceedings and of the consequences
under this paragraph of failing, other than because of
exceptional circumstances (as defined in subsection
(f)(2)) to attend a proceeding under section 242, shall
not be eligible for relief described in paragraph (5)
for a period of 5 years after the date of the entry of
the final order of deportation
(2) Voluntary departure.--
(A) In general.--Subject to subparagraph (B),
any alien allowed to depart involuntarily under
section 244(e)(1) section 244(e) or who has
agreed to depart voluntarily at his own expense
under [section 242(b)(1)] section 242(b)(5) who
remains in the United States after the
scheduled date of departure, other than because
of exceptional circumstances, shall not be
eligible for relief described in paragraph (5)
for a period of 5 years after the scheduled
date of departure or the date of unlawful
reentry, respectively.
* * * * * * *
(5) Relief covered.--The relief described in this
paragraph is--
(A) voluntary departure under [section
242(b)(1)] section 242(b)(5),
(B) [suspension of deportation]cancellation
of deportation or voluntary departure under
section 244, and
(C) adjustment or change of status under
section 244, 245, 248 or 249.
* * * * * * *
countries to which aliens shall be deported; cost of deportation
Sec. 243. (a) The deportation of an alien in the United
States provided for in this Act, or any other Act or treaty,
shall be directed by the Attorney General to a country promptly
designated by the alien if that country is willing to accept
him into its territory, unless the Attorney General, in his
discretion, concludes that deportation to such country would be
prejudicial to the interests of the United States. * * *
* * * * * * *
[(g) Upon the notification by the Attorney General that any
country upon request denies or unduly delays acceptance of the
return of any alien who is a national, citizen, subject, or
resident thereof, the Secretary of State shall instruct
consular officers performing their duties in the territory of
such country to discontinue the issuance of immigrant visas to
nationals, citizens, subjects, or residents of such country,
until such time as the Attorney General shall inform the
Secretary of State that such country has accepted such alien.]
(g)(1) If the Attorney General determines that any country
upon request denies or unduly delays acceptance of the return
of any alien who is a national, citizen, subject, or resident
thereof, the Attorney General shall notify the Secretary of
such fact, and thereafter, subject to paragraph (2), neither
the Secretary of State nor any consular officer shall issue an
immigrant or nonimmigrant visa to any national, citizen,
subject, or resident of such country.
(2) The Secretary of State may waive the application of
paragraph (1) if the Secretary determines that such a waiver is
necessary to comply with the terms of a treaty or international
agreement or is in the national interest of the United States.
* * * * * * *
(h)(1) The Attorney General shall not deport or return any
alien (other than an alien described in section
241(a)(4)(D)\162\) to a country if the Attorney General
determines that such alien's life or freedom would be
threatened in such country on account of race, religion,
nationality, membership in a particular social group, or
political opinion.
* * * * * * *
(3) The Attorney General may refrain from deporting any
alien if the Attorney General determines that--
(A) such alien's life or freedom would be threatened,
in the country to which such alien would be deported or
returned, on account of race, religion, nationality,
membership in a particular social group, or political
opinion, and
(B) Deporting such alien would violate the 1967
United Nations Protocol relating to the Status of
Refugees.
[For purposes of subparagraph (B), an alien who has been
convicted of an aggravated felony shall be considered to have
committed a particularly serious crime.]
For purposes of subparagraph (B), an alien shall be considered
to have committed a particularly serious crime if such alien
has been convicted of one or more of the following:
(1) An aggravated felony, or attempt or conspiracy to
commit an aggravated felony, for which the term of
imprisonment imposed (regardless of any suspension of
imprisonment) is at least one year.
(2) An offense described in subparagraph (A), (B),
(C), (E), (H), (I), (J), (L), or subparagraph (K)(ii),
of section 101(a)(43), or an attempt or conspiracy to
commit an offense described in one or more of such
subparagraphs.
[suspension of deportation; voluntary departure
[Sec. 244. (a) As hereinafter prescribed in this section,
the Attorney General may, in his discretion, suspend
deportation and adjust the status to that of an alien lawfully
admitted for permanent residence, in the case of an alien
(other than an alien described in section 241(a)(4)(D)) who
applies to the Attorney General for suspension of deportation
and--
[(1) is deportable under any law of the United States
except the provisions specified in paragraph (2) of
this subsection; has been physically present in the
United States for a continuous period of not less than
seven years immediately preceding the date of such
application, and proves that during all of such period
he was and is a person of good moral character; and is
a person whose deportation would, in the opinion of the
Attorney General, result in extreme hardship to the
alien or to his spouse, parent, or child, who is a
citizen of the United States or an alien lawfully
admitted for permanent residence;
[(2) is deportable under paragraph (2), (3), or (4)
of section 241(a); has been physically present in the
United States for a continuous period of not less than
10 years immediately following the commission of an
act, or the assumption of a status, constituting a
ground for deportation, and proves that during all of
such period he has been and is a person of good moral
character; and is a person whose deportation would, in
the opinion of the Attorney General, result in
exceptional and extremely unusual hardship to the alien
or to his spouse, parent, or child, who is a citizen of
the United States or an alien lawfully admitted for
permanent residence; or
[(3) is deportable under any law of the United States
except section 241(a)(1)(G) and the provisions
specified in paragraph (2); has been physically present
in the United States for a continuous period of not
less than 3 years immediately preceding the date of
such application; has been battered or subjected to
extreme cruelty in the United States by a spouse or
parent who is a United States citizen or lawful
permanent resident (or is the parent of a child of a
United States citizen or lawful permanent resident and
the child has been battered or subjected to extreme
cruelty in the United States by such citizen or
permanent resident parent); and proves that during all
of such time in the United States the alien was and is
a person of good moral character; and is a person whose
deportation would, in the opinion of the Attorney
General, result in extreme hardship to the alien or the
alien's parent or child.
[(b)(1) The requirement of continuous physical presence in
the United States specified in paragraphs (1) and (2) of
subsection (a) of this section shall not be applicable to an
alien who (A) has served for a minimum period of twenty-four
months in an active-duty status in the Armed Forces of the
United States and, if separated from such service, was
separated under honorable conditions, and (B) at the time of
his enlistment or induction was in the United States.
[(2) An alien shall be considered to have failed to
maintain continuous physical presence in the United States
under paragraphs (1) and (2) of subsection (a) if the absence
from the United States was brief, casual, and innocent and did
not meaningfully interrupt the continuous physical presence.
[(c) Upon application by any alien who is found by the
Attorney General to meet the requirements of subsection (a) of
this section the Attorney General may in his discretion suspend
deportation of such alien. No person who has been convicted of
an aggravated felony shall be eligible for relief under this
subsection.
[(d) Upon the cancellation of deportation in the case of
any alien under this section, the Attorney General shall record
the alien's lawful admission for permanent residence as of the
date the cancellation of deportation of such alien is made.
[(e)(1) Except as provided in paragraph (2), the Attorney
General may, in his discretion, permit any alien under
deportation proceedings, other than an alien within the
provisions of paragraph (2), (3), or (4) of section 241(a) (and
also any alien within the purview of such paragraphs if he is
also within the provisions of paragraph (2) of subsection (a)
of this section), to depart voluntarily from the United States
at his own expense in lieu of deportation if such alien shall
establish to the satisfaction of the Attorney General that he
is, and has been, a person of good moral character for at least
five years immediately preceding his application for voluntary
departure under this subsection.
[(2) The authority contained in paragraph (1) shall not
apply to any alien who is deportable because of a conviction
for an aggravated felony.
[(f) The provisions of subsection (a) shall not apply to an
alien who--
[(1) entered the United States as a crewman
subsequent to June 30, 1964;
[(2) was admitted to the United States as a
nonimmigrant exchange alien as defined in section
101(a)(15)(J), or has acquired the status of such a
nonimmigrant exchange alien after admission, in order
to receive graduate medical education, or training,
regardless of whether or not the alien is subject to or
has fulfilled the two-year foreign residence
requirement of section 212(e); or
[(3)(A) was admitted to the United States as a
nonimmigrant exchange alien as defined in section
101(a)(15)(J) or has acquired the status of such a
nonimmigrant exchange alien after admission other than
to receive graduate medical education or training, (B)
is subject to the two-year foreign residence
requirement of section 212(e), and (C) has not
fulfilled that requirement or received a waiver
thereof.
[(g) In acting on applicants under subsection (a)(3), the
Attorney General shall consider any credible evidence relevant
to the application. The determination of what evidence is
credible and the weight to be given that evidence shall be
within the sole discretion of the Attorney General.]
cancellation of deportation; adjustment of status; voluntary departure
Sec. 244 (a) Cancellation of Deportation.--(1) The Attorney
General may, in the Attorney General's discretion, cancel
deportation in the case of an alien who is deportable from the
United States and--
(A) is, and has been for at least 5 years, a lawful
permanent resident; has resided in the United States
continuously for not less than 7 years after being
lawfully admitted; and has not been convicted of an
aggravated felony or felonies for which the alien has
been sentenced to a term or terms of imprisonment
totaling, in the aggregate, at least 5 years;
(B) has been physically present in the United States
for a continuous period of not less than 7 years since
entering the United States; has been a person of good
moral character during such period; and establishes
that deportation would result in extreme hardship to
the alien or the alien's spouse, parent, or child, who
is a citizen or national of the United States or an
alien lawfully admitted for permanent residence;
(C) has been physically present in the United States
for a continuous period of not less than three years
since entering the United States; has been battered or
subjected to extreme cruelty in the United States by a
spouse or parent who is a United States citizen or
lawful permanent resident (or is the parent of a child
who is a United States citizen or lawful permanent
resident and the child has been battered or subjected
to extreme cruelty in the United States by such citizen
or permanent resident parent); has been a person of
good moral character during all of such period in the
United States; and establishes that deportation would
result in extreme hardship to the alien or the alien's
parent or child; or
(D) is deportable under paragraph (2) (A), (B), or
(D), or paragraph (3) of section 241(a); has been
physically present in the United States for a
continuous period of not less than 10 years immediately
following the commission of an act, or the assumption
of a status, constituting a ground for deportation, and
proves that during all of such period he has been a
person of good moral character; and is a person whose
deportation would, in the opinion of the Attorney
General, result in exceptional and extremely unusual
hardship to the alien or to his spouse, parent, or
child, who is a citizen of the United States or an
alien lawfully admitted for permanent residence.
(2)(A) For purposes of paragraph (1), any period of
continuous residence or continuous physical presence in the
United States shall be deemed to end when the alien is served
an order to show cause pursuant to section 242 or 242B.
(B) An alien shall be considered to have failed to maintain
continuous physical presence in the United States under
paragraph (1) (B), (C), or (D) if the alien was absent from the
United States for any single period of more than 90 days or an
aggregate period of more than 180 days.
(C) A person who is deportable under section 241(a)(2)(C)
or 241(a)(4) shall not be eligible for relief under this
section.
(D) A person who is deportable under section 241(a)(2) (A),
(B), or (D) or section 241(a)(3) shall not be eligible for
relief under paragraph (1) (A), (B), or (C).
(E) A person who has been convicted of an aggravated felony
shall not be eligible for relief under paragraph (1) (B), or
(C), (D).
(F) A person who is deportable under section 241(a)(1)(G)
shall not be eligible for relief under paragraph (1)(C).
(b) Continuous Physical Presence Not Required Because of
Honorable Service in Armed Forces and Presence Upon Entry Into
Service.--The requirements of continuous residence or
continuous physical presence in the United States specified in
subsection (a)(1) (A) and (B) shall not be applicable to an
alien who--
(1) has served for a minimum period of 24 months in
an active-duty status in the Armed Forces of the United
States and, if separated from such service, was
separated under honorable conditions, and
(2) at the time of his or her enlistment or
induction, was in the United States.
(c) Adjustment of Status.--The Attorney General may cancel
deportation and adjust to the status of an alien lawfully
admitted for permanent residence any alien who the Attorney
General determines meets the requirements of subsection (a)(1)
(B), (C), or (D). The Attorney General shall record the alien's
lawful admission for permanent residence as of the date the
Attorney General decides to cancel such alien's removal.
(d) Alien Crewmen; Nonimmigrant Exchange Aliens admitted To
Receive Graduate Medical Education or Training; Other.--The
provisions of subsection (a) shall not apply to an alien who--
(1) entered the United States as a crewman after June
30, 1964;
(2) was admitted to the United States as a
nonimmigrant alien described in section 101(a)(15)(J),
or has acquired the status of such a nonimmigrant alien
after admission, in order to receive graduate medical
education or training, without regard to whether or not
the alien is subject to or has fulfilled the two-year
foreign residence requirement of section 212(e); or
(3)(A) was admitted to the United States as a
nonimmigrant alien described in section 101(a)(15)(J),
or has acquired the status of such a nonimmigrant alien
after admission, other than to receive graduate medical
education or training;
(B) is subject to the two-year foreign residence
requirement of section 212(e); and
(C) has not fulfilled that requirement or received a
waiver thereof, or, in the case of a foreign medical
graduate who has received a waiver pursuant to section
220 of the Immigration and Nationality Technical
Corrections Act of 1994 (Public Law 103-416), has not
fulfilled the requirements of section 214(k).
(e) Voluntary Departure.--(1)(A) The Attorney General may
permit an alien voluntarily to depart the United States at the
alien's own expense--
(i) in lieu of being subject to deportation
proceedings under section 242 or prior to the
completion of such proceedings, if the alien is not a
person deportable under section 241(a)(2)(A)(iii) or
section 241(a)(4); or
(ii) after the completion of deportation proceedings
under section 242, only if a special inquiry officer
determines that--
(I) the alien is, and has been for at least 5
years immediately preceding the alien's
application for voluntary departure, a person
of good moral character;
(II) the alien is not deportable under
section 241(a)(2)(A)(iii) or section 241(a)(4);
and
(III) the alien establishes by clear and
convincing evidence that the alien has the
means to depart the United States and intends
to do so.
(B)(i) In the case of departure pursuant to subparagraph
(A)(i), the Attorney General may require the alien to post a
voluntary departure bond, to be surrendered upon proof that the
alien has departed the United States within the time specified.
(ii) If any alien who is authorized to depart voluntarily
under this paragraph is financially unable to depart at the
alien's own expense and the Attorney General deems the alien's
removal to be in the best interest of the United States, the
expense of such removal may be paid from the appropriation for
enforcement of this Act.
(C) In the case of departure pursuant to subparagraph
(A)(ii), the alien shall be required to post a voluntary
departure bond, in an amount necessary to ensure that the alien
will depart, to be surrendered upon proof that the alien has
departed the United States within the time specified.
(2) If the alien fails voluntarily to depart the United
States within the time period specified in accordance with
paragraph (1), the alien shall be subject to a civil penalty of
not more than $500 per day and shall be ineligible for any
further relief under this subsection or subsection (a).
(3)(A) The Attorney General may by regulation limit
eligibility for voluntary departure for any class or classes of
aliens.
(B) No court may review any regulation issued under
subparagraph (A).
(4) No court shall have jurisdiction over an appeal from
denial of a request for an order of voluntary departure under
paragraph (1), nor shall any court order a stay of an alien's
removal pending consideration of any claim with respect to
voluntary departure.
adjustment of status of nonimmigrant to that of person admitted for
permanent residence
Sec. 245. (a) * * *
* * * * * * *
(c) Subsection (a) shall not be applicable to (1) an alien
crewman; (2) an alien (other than an immediate relative as
defined in section 201(b) or a special immigrant described in
section 101(a)(27)(H), (I), (J), or (K)) who hereafter
continues in or accepts unauthorized employment prior to filing
an application for adjustment of status or who is in unlawful
immigration status on the date of filing the application for
adjustment of status or who has failed (other than through no
fault of his own or for technical reasons) to maintain
continuously a lawful status since entry into the United
States; (3) any alien admitted in transit without visa under
section 212(d)(4)(C); (4) an alien (other than an immediate
relative as defined in section 201(b)) who was admitted as a
nonimmigrant visitor without a visa under section 212(l) or
section 217; [or (5)] (5) an alien who was admitted as a
nonimmigrant described in section 101(a)(15)(S); (6) any alien
who seeks adjustment of status as an employment-based immigrant
and is not in a lawful nonimmigrant status; or (7) any alien
who was employed while the alien was an unauthorized alien, as
defined in section 274A(h)(3), or who has otherwise violated
the terms of a nonimmigrant visa.
* * * * * * *
adjustment of status of certain entrants before january 1, 1982, to
that of person admitted for lawful residence
Sec. 245A. (a) Temporary Resident Status.--The Attorney
General shall adjust the status of an alien to that of an alien
lawfully admitted for temporary residence if the alien meets
the following requirements:
* * * * * * *
(c) Applications for Adjustment of Status.--
(1) To whom may be made.--The Attorney General shall
provide that applications for adjustment of status
under subsection (a) may be filed--
* * * * * * *
(5) Confidentiality of information.--Neither the
Attorney General, nor any other official or employee of
the Department of Justice, or bureau or agency thereof,
may--
(A) use the information furnished pursuant to
an application filed under this section for any
purpose other than to make a determination on
the application or for enforcement of paragraph
(6) or for the preparation of reports to
Congress under section 404 of the Immigration
Reform and Control Act of 1986,
(B) make any publication whereby the
information furnished by any particular
individual can be identified, or
(C) permit anyone other than the sworn
officers and employees of the Department or
bureau or agency or, with respect to
applications filed with a designated entity,
that designated entity, to examine individual
applications;
[except that the Attorney General] except that the
Attorney General shall provide information furnished
under this section to a duly recognized law enforcement
entity in connection with a criminal investigation or
prosecution, when such information is requested in
writing by such entity, or to an official coroner for
purposes of affirmatively identifying a deceased
individual (whether or not such individual is deceased
as a result of a crime) and may provide, in the
Attorney General's discretion, for the furnishing of
information furnished under this section in the same
manner and circumstances as census information may be
disclosed by the Secretary of Commerce under section 8
of title 13, United States Code. Anyone who uses,
publishes, or permits information to be examined in
violation of this paragraph shall be fined in
accordance with title 18, United States Code, or
imprisoned not more than five years, or both.
* * * * * * *
(f) Administrative and Judicial Review.--
(1) Administrative and judicial review.--There shall
be no administrative or judicial review of a
determination respecting an application for adjustment
of status under this section except in accordance with
this subsection.
* * * * * * *
(4) Judicial review.--
(A) Limitation to review of deportation.--
There shall be judicial review of such a denial
only in the judicial review of an order of
deportation under section 106.
* * * * * * *
(C) Jurisdiction of courts.--Notwithstanding
any other provision of law, no court shall have
jurisdiction of any cause of action or claim by
or on behalf of any person asserting an
interest under this section unless such person
in fact filed an application under this section
within the period specified by subsection
(a)(1), or attempted to file a complete
application and application fee with an
authorized legalization officer of the
Immigration and Naturalization Service but had
the application and fee refused by that
officer.
* * * * * * *
rescission of adjustment of status
Sec. 246. (a)(1) If, at any time within five years after
the status of a person has been otherwise adjusted under the
provisions of section 245 or 249 of this Act or any other
provision of law to that of an alien lawfully admitted for
permanent residence, it shall appear to the satisfaction of the
Attorney General that the person was not in fact eligible for
such adjustment of status, the Attorney General shall rescind
the action taken granting an adjustment of status to such
person and cancelling deportation in the case of such person if
that occurred and the person shall thereupon be subject to all
provisions of this Act to the same extent as if the adjustment
of status had not been made. Nothing in this subsection
requires the Attorney General to rescind the alien's status
prior to commencement of procedures to deport the alien under
section 242 or 242A, and an order of deportation issued by a
special inquiry officer shall be sufficient to rescind the
alien's status.
* * * * * * *
CHAPTER 8--GENERAL PENALTY PROVISIONS
* * * * * * *
Sec. 273. (a) It shall be unlawful for any person,
including any transportation company, or the owner, master,
commanding officer, agent, charterer, or consignee of any
vessel or aircraft, to bring to the United States from any
place outside thereof (other than from foreign contiguous
territory) any alien who does not have a valid passport and an
unexpired visa, if a visa was required under this Act or
regulations issued thereunder.
* * * * * * *
[(d) The owner, charterer, agent, consignee, commanding
officer, or master of any vessel or aircraft arriving at the
United States from any place outside the United States who
fails to deport any alien stowaway on the vessel or aircraft on
which such stowaway arrived or on another vessel or aircraft at
the expense of the vessel or aircraft on which such stowaway
arrived when required to do so by an immigration officer, shall
pay to the Commissioner the sum of $3,000 for each alien
stowaway, in respect of whom any such failure occurs. Pending
final determination of liability for such fine, or such vessel
or aircraft shall be granted clearance, except that clearance
may be granted upon the deposit of an amount sufficient to
cover such fine, or of a bond with sufficient surety to secure
the payment thereof approved by the Commissioner. The
provisions of section 235 for detention of aliens for
examination before special inquiry officers and the right of
appeal provided for in section 236 shall not apply to aliens
who arrive as stowaways and no such alien shall be permitted to
land in the United States, except temporarily for medical
treatment, or pursuant to such regulations as the Attorney
General may prescribe for the ultimate departure or removal or
deportation of such alien from the United States.]
(d)(1) it shall be the duty of the owner, charterer, agent,
consignee, commanding officer, or master of any vessel or
aircraft arriving at the United States from any place outside
the United States to detain on board or at such other place as
may be designated by an immigration officer any alien stowaway
until such stowaway has been inspected by an immigration
officer.
(2) Upon inspection of an alien stowaway by an immigration
officer, the Attorney General may by regulation take immediate
custody of any stowaway and shall charge the owner, charterer,
agent, consignee, commanding officer, or master of the vessel
or aircraft on which the stowaway has arrived the costs of
detaining the stowaway.
(3) It shall be the duty of the owner, charterer, agent,
consignee, commanding officer, or master of any vessel or
aircraft arriving at the United States from any place outside
the United States to deport any alien stowaway on the vessel or
aircraft on which such stowaway arrived or on another vessel or
aircraft at the expense of the vessel or aircraft on which such
stowaway arrived when required to do so by an immigration
officer.
(4) Any person who fails to comply with paragraph (1) or
(3), shall be subject to a fine of $5,000 for each alien for
each failure to comply, payable to the Commissioner. The
Commissioner shall deposit amounts received under this
paragraph as offsetting collections to the applicable
appropriations account of the Service. Pending final
determination of liability for such fine, no such vessel or
aircraft shall be granted clearance, except that clearance may
be granted upon the deposit of a sum sufficient to cover such
fine, or of a bond with sufficient surety to secure the payment
thereof approved by the commissioner.
(5) An alien stowaway inspected upon arrival shall be
considered an excluded alien under this Act.
(6) The provisions of section 235 for detention of aliens
for examination before a special inquiry officer and the right
of appeal provided for in section 236 shall not apply to aliens
who arrive as stowaways, and no such aliens shall be permitted
to land in the United States, except temporarily for medical
treatment, or pursuant to such regulations as the Attorney
general may prescribe for the departure, removal, or
deportation of such alien from the United States.
(7) A stowaway may apply for asylum under section 208 or
withholding of deportation under section 243(h), pursuant to
such regulation as the Attorney General may establish.
* * * * * * *
bringing in and harboring certain aliens
Sec. 274. (a) Criminal Penalties.--(1)(A) Any person who--
(i) * * *
* * * * * * *
(iii) knowing or in reckless disregard of the fact
that an alien has come to, entered, or remains in the
United States in violation of law, conceals, harbors,
or shields from detection, or attempts to conceal,
harbor, or shield from detection, such alien in any
place, including any building or any means of
transportation; [or]
(iv) encourages or induces an alien to come to,
enter, or reside in the United States, knowing or in
reckless disregard of the fact that such coming to,
entry, or residence is or will be in violation of
law[,]; or
(v)(I) engages in any conspiracy to commit any of the
preceding acts, or
(II) aids or abets the commission of any of the
preceding acts,
shall be punished as provided in subparagraph (B).
(B) A person who violates subparagraph (A) shall, for each
alien in respect to whom such a violation occurs--
(i) in the case of a violation of subparagraph (A)(i)
or (v)(I), be fined under title 18, United States Code,
imprisoned not more than 10 years, or both;
(ii) in the case of a violation of subparagraph (A)
(ii), (iii), [or (iv)] (iv), or (v)(II), be fined under
title 18, United States Code, imprisoned not more than
5 years, or both;
(iii) in the case of a violation of subparagraph (A)
(i), (ii), (iii), [or (iv)] (iv), or (v), during and in
relation to which the person causes serious bodily
injury (as defined in section 1365 of title 18, United
States Code) to, or places in jeopardy the life of, any
person, be fined under title 18, United States Code,
imprisoned not more than 20 years, or both; and
(iv) in the case of a violation of subparagraph (A)
(i), (ii), (iii), [or (iv)] (iv), or (v) resulting in
the death of any person, be punished by death or
imprisoned for any term of years or for life, fined
under title 18, United States Code, or both.
(2) Any person who, knowing or in reckless disregard of the
fact that an alien has not received prior official
authorization to come to, enter, or reside in the United
States, brings to or attempts to bring to the United States in
any manner whatsoever, such alien, regardless of any official
action which may later be taken with respect to such alien
shall, [for each transaction constituting a violation of this
paragraph, regardless of the number of aliens involved] for
each alien in respect to whom a violation of this paragraph
occurs--
(A) be fined in accordance with title 18, United
States Code, or imprisoned not more than one year, or
both; or
(B) in the case of--
(i) a second or subsequent offense,
(ii) an offense done for the purpose of
commercial advantage or private financial gain,
[or]
(iii) an offense committed with the intent,
or with substantial reason to believe, that the
alien unlawfully brought into the United States
will commit an offense against the United
States or any State punishable by imprisonment
for more than 1 year; or
[(iii)] (iv) an offense in which the alien is
not upon arrival immediately brought and
presented to an appropriate immigration officer
at a designated port of entry,
[be fined in accordance with title 18, United States Code, or
in the case of a violation of subparagraph (B)(ii), imprisoned
not more than 10 years, or both; or in the case of a violation
of subparagraph (B)(i) or (B)(iii), imprisoned not more than 5
years, or both.]
be fined under title 18, United States Code, and shall be
imprisoned for a first or second offense, not more than 10
years, and for a third or subsequent offense, not more than 15
years.
(3) Any person who hires for employment an alien--
(A) knowing that such alien is an unauthorized alien
(as defined in section 274A(h)(3)), and
(B) knowing that such alien has been brought into the
United States in violation of this subsection,
shall be fined under title 18, United States Code, and shall be
imprisoned for not more than 5 years.
(b) [(1) Any conveyance, including any vessel, vehicle, or
aircraft, which has been or is being used in the commission of
a violation of subsection (a) shall be seized and subject to
forfeiture, except that--
[(A) no conveyance used by any person as a common
carrier in the transaction of business as a common
carrier shall be forfeited under the provisions of this
section unless it shall appear that the owner or other
person in charge of such conveyance was a consenting
party or privy to the illegal act; and
[(B) no conveyance shall be forfeited under the
provisions of this section by reason of any act or
omission established by the owner thereof to have been
committed or omitted by any person other than such
owner while such conveyance was unlawfully in the
possession of a person other than the owner in
violation of the criminal laws of the United States, or
of any State.]
(1) Any property, real or personal, which facilitates or is
intended to facilitate, or has been or is being used in or is
intended to be used in the commission of, a violation of, or
conspiracy to violate, subsection (a) or section 1028, 1425,
1426, 1427, 1541, 1542, 1543, 1544, or 1546 of title 18, United
States Code, or which constitutes, or is derived from or
traceable to, the proceeds obtained directly or indirectly from
a commission of a violation of, or conspiracy to violate,
subsection (a) or section 1028, 1425, 1426, 1427, 1541, 1542,
1543, 1544, or 1546 of title 18, United States Code, shall be
subject to seizure and forfeiture, expect that--
(A) no property used by any person as a common
carrier in the transaction of business as a common
carrier shall be forfeited under the provisions of this
section unless it shall appear that the owner or other
person in charge of such property was a consenting
party or privy to the unlawful act;
(B) no property shall be forfeited under this section
by reason of any act or omission established by the
owner thereof to have been committed or omitted by any
person other than such owner while such property was
unlawfully in the possession of a person other than the
owner in violation of, or in conspiracy to violate, the
criminal laws of the United States or of any State; and
(C) no property shall be forfeited under this
paragraph to the extend of an interest of any owner, by
reason of any act or omission established by such owner
to have been committed or omitted without the knowledge
or consent of such owner, unless such act or omission
was committed by an employee or agent of such owner,
and facilitated or was intended to facilitate, the
commission of a violation of, or a conspiracy to
violate, subsection (a) or section 1028, 1425, 1426,
1427, 1541, 1542, 1543, 1544, or 1546 of title 18,
United States Code, or was intended to further the
business interests of the owner, or to confer any other
benefit upon the owner.
(2) Any [conveyance] property subject to seizure under this
section may be seized without warrant if there is probable
cause to believe the [conveyance] property has been use or [is
being used in] is being used in, is facilitating, has
facilitated, or was intended to facilitate a violation of
subsection (a) and circumstances exist where a warrant is not
constitutionally required.
(3) (A) All provisions of law relating to the seizure,
summary and judicial forfeiture, and condemnation of property
for the violation of the customs laws; the disposition of such
property or the proceeds from the sale thereof; the remission
or mitigation of such forfeitures; and the compromise of claims
and the award of compensation for informers in respect of such
forfeitures shall apply to seizures and forfeitures incurred,
or alleged to have been incurred, under the provisions of this
section,insofar as applicable and not inconsistent with the
provisions hereof, except that duties imposed on customs
officers or other persons regarding the seizure and forfeiture
of property under the customs laws shall be performed with
respect to seizures and forfeitures carried out under the
provisions of this section by such officers or persons
authorized for that purpose by the Attorney General.
(B) Before the seizure of any real property pursuant to
this section, the Attorney General shall provide notice and an
opportunity to be heard to the owner of the property. The
Attorney General shall prescribe such regulations as may be
necessary to carry out this subparagraph.
(4) Whenever [a conveyance] property is forfeited under
this section the Attorney General may--
(A) retain the [conveyance] property for official
use;
(B) sell the [conveyance] property, in which case the
proceeds from any such sale shall be used to pay all
proper expenses of the proceedings for forfeiture and
sale including expenses of seizure, maintenance of
custody, advertising, and court costs;
(C) require that the General Services Administration,
or the Maritime Administration if appropriate under
section 203(i) of the Federal Property and
Administrative Service Act of 1949 (40 U.S.C. 484(i)),
take custody of the [conveyance] property and remove it
for disposition in accordance with law; [or]
(D) dispose of the [conveyance] property in
accordance with the terms and conditions of any
petition of remission or mitigation of forfeiture
granted by the Attorney General[.] ; or
(E) transfer custody and ownership of forfeited
property to any Federal, State, or local agency
pursuant to section 616(c) of the Tariff Act of 1930
(19 U.S.C. 1616a(c)).
(5) In all suits or actions brought for the forfeiture of
any [conveyance] property seized under this section, where the
[conveyance] property is claimed by any person, the burden of
proof shall lie upon such claimant, except that probable cause
shall be first shown for the institution of such suit or
action. In determining whether probable cause exists, any of
the following shall be prima facie evidence that an alien
involved in the alleged violation had not received prior
official authorization to come to, enter, or reside in the
United States or that such alien had come to, entered, or
remained in the United States in violation of law:
* * * * * * *
(c) Criminal Forfeiture.--(1) Any person convicted of a
violation of, or a conspiracy to violate, subsection (a) or
section 274A(a) (1) or (2) of this Act, or section 1028, 1425,
1426, 1427, 1541, 1542, 1543, 1544, or 1546 of title 18, United
States Code, shall forfeit to the United States, regardless of
any provision of State law--
(A) any conveyance, including any vessel, vehicle, or
aircraft used in the commission of a violation of, or a
conspiracy to violate, subsection (a); and
(B) any property real or personal--
(i) that constitutes, or is derived from or
is traceable to the proceeds obtained directly
or indirectly from the commission of a
violation of, or a conspiracy to violate,
subsection (a), section 274A(a) (1) or (2) of
this Act, or section 1028, 1425, 1426, 1427,
1541, 1542, 1543, 1544, or 1546 of title 18,
United States Code; or
(ii) that is used to facilitate, or is
intended to be used to facilitate, the
commission of a violation of, or a conspiracy
to violate, subsection (a), section 274A(a) (1)
or (2) of this Act, or section 1028, 1425,
1426, 1427, 1541, 1542, 1543, 1544, or 1546 of
title 18, United States Code.
The court, in imposing sentence on such person, shall order
that the person forfeit to the United States all property
described in this subsection.
(2) The criminal forfeiture of property under this
subsection, including any seizure and disposition of the
property and any related administrative or juridical
proceeding, shall be governed by the provisions of section 413
of the Comprehensive Drug Abuse Prevention and Control Act of
1970 (21 U.S.C. 853), other than subsections (a) and (d) of
such section 413.
[(c)] (d) No officer or person shall have authority to make
any arrest for a violation of any provision of this section
except officers and employees of the Service designated by the
Attorney General, either individually or as a member of a
class, and all other officers whose duty it is to enforce
criminal laws.
(e) Notwithstanding any provision of the Federal Rules of
Evidence, the videotaped (or otherwise audio-visually
preserved) deposition of a witness to a violation of subsection
(a) who has been deported or otherwise expelled from the United
States, or is otherwise unable to testify, may be admitted into
evidence in an action brought for that violation if the witness
was available for cross examination and the deposition complies
with the Federal Rules of Evidence.
unlawful employment of aliens
Sec. 274A. (a) Making Employment of Unauthorized Aliens
Unlawful.
(1) In general.--It is unlawful for a person or other
entity--
* * * * * * *
(6) State agency referrals.--A State employment
agency that refers any individual for employment shall
comply with the procedures specified in subsection (b).
For purposes of the attestation requirement in
subsection (b)(1), the agency employee who is primarily
involved in the referral of the individual shall make
the attestation on behalf of the agency.
(b) Employment Verification System.--The requirements
referred to in paragraphs (1)(B) and (3) of subsection (a) are,
in the case of a person or other entity hiring, recruiting, or
referring an individual for employment in the United States,
the requirements specified in the following three paragraphs:
(1) Attestation after examination of documentation.--
(A) In General.--The person or entity must
attest, under penalty of perjury and on a form
designated or established by the Attorney
General by regulation, that it has verified
that the individual is not an unauthorized
alien by examining--
* * * * * * *
(B) Documents establishing both employment
authorization and identify.--A document
described in this subparagraph is an
individual's--
(i) United States passport; or
[(ii) certificate of United States
citizenship;]
[(iii) certificate of
naturalization;]
[(iv) unexpired foreign passport, if
the passport has an appropriate,
unexpired endorsement of the Attorney
General authorizing the individual's
employment in the United States; or]
[[(v)] (ii) resident alien card or
other alien registration card, if the
card--]
(ii) resident alien card, alien
registration card, or other document
designated by regulation by the
Attorney General, if the document--
(I) contains a photograph of
the individual or such other
personal identifying
information relating to the
individual as the Attorney
General finds, by regulation,
sufficient for purposes of this
subsection, [and]
(II) is evidence of
authorization of employment in
the United. States[.], and
(III) contains appropriate
security features.
(C) Documents evidencing employment
authorization.--A document described in this
subparagraph is an individual's--
(i) social security account number
card (other than such a card which
specifies on the face that the issuance
of the card does not authorize
employment in the United States); or
[(ii) certificate of birth in the
United States or establishing United
States nationality at birth, which
certificate the Attorney General finds,
by regulation, to be acceptable for
purposes of this section; or]
(iii)(ii) other documentation
evidencing authorization of employment
in the United States which the Attorney
General finds, by regulation, to be
acceptable for purposes of this
section.
* * * * * * *
(2) Individual attestation of employment
authorization.--The individual must attest, under
penalty of perjury on the form designated or
established for purposes of paragraph (1), that the
individual is a citizen or national of the United
States, an alien lawfully admitted for permanent
residence, or an alien who is authorized under this Act
or by the Attorney General to be hired, recruited, or
referred for such employment. The Attorney General is
authorized to require an individual to provide on the
form described in paragraph (1)(A) the individual's
social security account number for purposes of
complying with this section.
(3) Retention of verification form.--After completion
of such form in accordance with paragraphs (1) and (2),
the person or entity must retain the form (except in
any case of disaster, act of God, or other event beyond
the control of the person or entity) and make it
available for inspection by officers of the Service,
the Special Counsel for Immigration-Related Unfair
Employment Practices,\209\ or the Department of Labor
during a period beginning on the date of the hiring,
recruiting, or referral of the individual and ending--
* * * * * * *
(e) Compliance.--
(1) Complaints and investigations.--The Attorney
General shall establish procedures--
* * * * * * *
(2) Authority in investigations.--In conducting
investigations and hearings under this subsection--
(A) immigration officers and administrative
law judges shall have reasonable access to
examine evidence of any person or entity being
investigated, [and]
(B) administrative law judges, may, if
necessary, compel by subpoena the attendance of
witnesses and the production of evidence at any
designated place or hearing[.], and
In case of contumacy or refusal to obey a subpoena
lawfully issued under this paragraph and upon
application of the Attorney General, an appropriate
district court of the United States may issue an order
requiring compliance with such subpoena and any failure
to obey such order may be punished by such court as a
contempt thereof.
(C) immigration officers designated by the
Commissioner may compel by subpoena the
attendance of witnesses and the production of
evidence at any designated place prior to the
filing of a complaint in a case under paragraph
(2).
* * * * * * *
(9) Enforcement of orders.--If a person or entity
fails to comply with a final order issued under this
subsection against the person or entity, the Attorney
General shall file a suit to seek compliance with the
order in any appropriate district court of the United
States. In any such suit, the validity and
appropriateness of the final order shall not be subject
to review.
(10)(A) The administrative law judge shall have the
authority to require payment of a civil money penalty
in an amount up to two times the amount of the penalty
prescribed by this subsection in any case in which the
employer has been found to have committed a willful
violation or repeated violations of any of the
following statutes:
(i) The Fair Labor Standards Act (29 U.S.C.
201 et seq.) pursuant to a final determination
by the Secretary of Labor or a court of
competent jurisdiction.
(ii) The Migrant and Seasonal Agricultural
Worker Protection Act (29 U.S.C. 1801 et seq.)
pursuant to a final determination by the
Secretary of Labor or a court of competent
jurisdiction.
(iii) The Family and Medical Leave Act (29
U.S.C. 2601 et seq.) pursuant to a final
determination by the Secretary of Labor or a
court of competent jurisdiction.
(B) The Secretary of Labor and the Attorney General
shall consult regarding the administration of this
paragraph.
* * * * * * *
unfair immigration-related employment practices
Sec. 274B. (a) Prohibition of Discrimination Based on
National Origin or Citizenship Status.--
(1) General rule.--It is an unfair immigration-
related employment practice practice for a person or
other entity to discriminate against any individual
(other than an unauthorized alien, as defined in
section 274A(h)(3)) with respect to the hiring, or
recruitment or referral for a fee, of the individual
for employment or the discharging of the individual
from employment--
* * * * * * *
(6) Treatment of certain documentary practices as
employment practices.--[For purposes of paragraph (1),
a]A person's or other entity's request, for purposes of
satisfying the requirements of section 274A(b), for
more or different documents than are required under
such section or refusing to honor documents tendered
that on their face reasonably appear to be genuine
shall be treated as an unfair immigration-related
employment practice [relating to the hiring of
individuals] if made for the purpose or with the intent
of discriminating against an individual in violation of
paragraph (1).
* * * * * * *
Penalties for Document Fraud
Sec. 274C. (a) Activities Prohibited.--It is unlawful for
any person or entity knowingly--
(1) to forge, counterfeit, alter, or falsely make any
document for the purpose of satisfying a requirement of
this Act or to obtain a benefit under this Act,
(2) to use, attempt to sue, possess, obtain, accept,
or receive or to provide any forged, counterfeit,
altered, or falsely made document in order to satisfy
any requirement of this Act or to obtain a benefit
under this Act,
(3) to use or attempt to use or to provide or attempt
to provide any document lawfully issued to or with
respect to a person other than the possessor (including
a deceased individual) for the purpose of satisfying a
requirement of this Act or obtaining a benefit under
this Act, [or]
(4) to accept or receive or to provide any document
lawfully issued to or with respect to a person other
than the possessor (including a deceased individual)
for the purpose of complying with section 274A(b) or
obtaining a benefit under this Act, or
(5) to prepare, file, or assist another in preparing
or filing, any application for benefits under this Act,
or any document required under this Act, or any
document submitted in connection with such application
or document, with knowledge or in reckless disregard of
the fact that such application or document was falsely
made or, in whole or in part, does not relate to the
person on whose behalf it was or is being submitted; or
(6) to (A) present before boarding a common carrier
for the purpose of coming to the United States a
document which relates to the alien's eligibility to
enter the United States, and (B) fail to present such
document to an immigration officer upon arrival at a
United States port of entry.
* * * * * * *
(d) Enforcement.--
(1) Authority in investigations.--In conducting
investigations and hearings under this subsection--
(A) immigration officers and administrative
law judges shall have reasonable access to
examine evidence of any person or entity being
investigated, [and]
(B) administrative law judges, may, if
necessary, compel by subpoena the attendance of
witnesses and the production of evidence at any
designated place or hearing[.], and
(C) immigration officers designated by the
Commissioner may compel by subpoena the
attendance of witnesses and the production of
evidence at any designated place prior to the
filing of a complaint in a case under paragraph
(2).
In case of contumacy or refusal to obey a subpoena
lawfully issued under this paragraph and upon
application of the Attorney General, an appropriate
district court of the United States may issue an order
requiring compliance with such subpoena and any failure
to obey such order may be punished by such court as a
contempt thereof.
* * * * * * *
(3) Cease and desist order with civil, money
penalty.--With respect to a violation of subsection
(a), the order under this subsection shall require the
person or entity to cease and desist from such
violations and to pay a civil penalty in an amount of--
(A) not less than $250 and not more than
$2,000 for [each document used, accepted, or
created and each instance of use, acceptance,
or creation] each document that is the subject
of a violation under subsection (a), or
(B) in the case of a person or entity
previously subject to an order under this
paragraph, not less than $2,000 and not more
than $5,000 for [each document used, accepted,
or created and each instance of use,
acceptance, or creation] each document that is
the subject of a violation under subsection
(a).
In applying this subsection in the case of a person or
entity composed of distinct, physically separate
subdivisions each of which provides separately for the
hiring, recruiting, or referring for employment,
without reference to the practices of, and not under
the control of or common control with, another
subdivision, each such subdivision shall be considered
a separate person or entity.
* * * * * * *
(7) Civil penalty.--(A) The administrative law judge
shall have the authority to require payment of a civil
money penalty in an amount up to two times the level of
the penalty prescribed by this subsection in any case
where the employer has been found to have committed
willful or repeated violations of any of the following
statutes:
(i) The Fair Labor Standards Act (29 U.S.C.
201 et seq.) pursuant to a final determination
by the Secretary of Labor or a court of
competent jurisdiction.
(ii) The Migrant and Seasonal Agricultural
Worker Protection Act (29 U.S.C. 1801 et seq.)
pursuant to a final determination by the
Secretary of Labor or a court of competent
jurisdiction.
(iii) The Family and Medical Leave Act (29
U.S.C. 2601 et seq.) pursuant to a final
determination by the Secretary of Labor or a
court of competent jurisdiction.
(B) The Secretary of Labor and the Attorney General
shall consult regarding the administration of this
paragraph.
(8) Waiver by attorney general.--The Attorney General
may waive the penalties imposed by this section with
respect to an alien who knowingly violates paragraph
(6) if the alien is granted asylum under section 208 or
withholding of deportation under section 243(h).
(e) Criminal Penalties for Failure to Disclose Role as
Document Preparer.--
(1) Whoever, in any matter within the jurisdiction of
the Service under section 208 of this Act, knowingly
and willfully fails to disclose, conceals, or covers up
the fact that they have, on behalf of any person and
for a fee or other remuneration, prepared or assisted
in preparing an application which was falsely made (as
defined in subsection (f)) for immigration benefits
pursuant to section 208 of this Act, or the regulations
promulgated thereunder, shall be guilty of a felony and
shall be fined in accordance with title 18, United
States code, imprisoned for not more than 5 years, or
both, and prohibited from preparing or assisting in
preparing, whether or not for a fee or other
remuneration, any other such application.
(2) Whoever, having been convicted of a violation of
paragraph (1), knowingly and willfully prepares or
assists in preparing an application for immigration
benefits pursuant to this Act, or the regulations
promulgated thereunder, whether or not for a fee or
other remuneration and regardless of whether in any
matter within the jurisdiction of the Service under
section 208, shall be guilty of a felony and shall be
fined in accordance with title 18, United States Code,
imprisoned for not more than 15 years, or both, and
prohibited from preparing or assisting in preparing any
other such application.
(f) Falsely Make.--For purposes of this section, the term
``falsely make'' means to prepare or provide an application or
document, with knowledge or in reckless disregard of the fact
that the application or document contains a false, fictitious,
or fraudulent statement or material representation, or has no
basis in law or fact, or otherwise fails to state a fact which
is material to the purpose for which it was submitted.
civil penalties for failure to depart
Sec. 274D. (a) Any alien subject to a final order of
exclusion and deportation or deportation who--
(1) willfully fails or refuses to--
(A) depart on time from the United States
pursuant to the order;
(B) make timely application in good faith for
travel or other documents necessary for
departure; or
(C) present himself or herself for
deportation at the time and place required by
the Attorney General; or
(2) conspires to or takes any action designed to
prevent or hamper the alien's departure pursuant to the
order,
shall pay a civil penalty of not more than $500 to the
Commissoner for each day the alien is in violation of this
section.
(b) The Commissioner shall deposit amounts received under
subsection (a) as offsetting collections in the appropriate
appropriations account of the Service.
(c) Nothing in this section shall be construed to diminish
or qualify any penalties to which an alien my be subject for
activities proscribed by section 242(e) or any other section of
this Act
* * * * * * *
reentry of deported alien
Sec. 276. (a) Subject to subsection (b), any alien who--
[(1) has been arrested and deported or excluded and
deported, and thereafter]
(1) has been arrested and deported, has been excluded
and deported, or has departed the United States while
an order of exclusion or deportation is outstanding,
and thereafter
* * * * * * *
CHAPTER 9--MISCELLANEOUS
* * * * * * *
powers of immigration officers and employees
Sec. 287. (a) Any officer or employee of the Service
authorized under regulations prescribed by the Attorney General
shall have power without warrant--
* * * * * * *
(f)(1) Under regulations of the Attorney General, the
Commissioner shall provide for the fingerprinting and
photographing of each alien 14 years of age or older against
whom a proceeding is commenced under section 242.
(2) Such fingerprints and photographs shall be made
available to Federal, State, and local law enforcement
agencies, upon request.
(g)(1) Notwithstanding section 1342 of title 31, United
States Code, the Attorney General may enter into a written
agreement with a State, or any political subdivision of a
State, pursuant to which an officer or employee of the State or
subdivision, who is determined by the Attorney General to be
qualified to perform a function of an immigration officer in
relation to the arrest or detention of aliens in the United
States, may carry out such function at the expense of the State
or political subdivision and to extent consistent with State
and local law.
(2) An agreement under this subsection shall require that
an officer or employee of a State or political subdivision of a
State performing a function under the agreement shall have
knowledge of, and adhere to, Federal law relating to the
function, and shall contain a written certification that the
officers or employees performing the function under the
agreement have received adequate training regarding the
enforcement of relevant Federal immigration laws.
(3) In performing a function under this subsection, an
officer or employee of a State or political subdivision of a
State shall be subject to the direction and supervision of the
Attorney General.
(4) In performing a function under this subsection, an
officer or employee of a State or political subdivision of a
State may use Federal property or facilities, as provided in a
written agreement between the Attorney General and the State or
subdivision.
(5) With respect to each officer or employee of a State or
political subdivision who is authorized to perform a function
under this subsection, the specific powers and duties that may
be, or are required to be, exercised or performed by the
individual, the duration of the authority of the individual,
and the position of the agency of the Attorney General who is
required to supervise and direct the individual shall be set
forth in a written agreement between the Attorney General and
the State or political subdivision.
(6) The Attorney General may not accept a service under
this subsection if the service will be used to displace any
Federal employee.
(7) Except as provided in paragraph (8), an officer or
employee of a State or political subdivision of a State
performing functions under this subsection shall not be treated
as a Federal employee for any purpose other than for purposes
of chapter 81 of title 5, United States Code, (relating to
compensation for injury) and sections 2671 through 2680 of
title 28, United States Code (relating to tort claims).
(8) An officer or employee of a State or political
subdivision of a State acting under color of authority under
this subsection, or any agreement entered into under this
subsection, shall be considered to be acting under color of
Federal authority for purposes of determining the liability,
and immunity from suit, of the officer or employee in a civil
action brought under Federal or State law.
(9) Nothing in this subsection shall be construed to
require any State or political subdivision of a State to enter
into an agreement with the Attorney General under this
subsection.
(10) Nothing in this subsection shall be construed to
require an agreement under this subsection in order for any
officer or employee of a State or political subdivision of a
State--
(A) to communicate with the Attorney General
regarding the immigration status of any individual,
including reporting knowledge that a particular alien
is not lawfully present in the United States; or
(B) otherwise to cooperate with the Attorney General
in the identification, apprehension, detention, or
removal of aliens not lawfully present in the United
States.
* * * * * * *
right to counsel
Sec. 292. In any exclusion or deportation proceedings
before a special inquiry officer and in any appeal proceedings
before the Attorney General from any such exclusion or
deportation proceedings, the person concerned shall have the
privilege of being represented [(at no expense to the
Government)] (at no expense to the Government or unreasonable
delay to the proceedings) by such counsel, authorized to
practice in such proceedings, as he shall choose.
secretary of labor subpoena authority
Sec. 294. The Secretary of labor may issue subpoenas
requiring the attendance and testimony of witnesses or the
production of any records, books, papers, or documents in
connection with any investigation or hearing conducted in the
enforcement of any immigration program for which the Secretary
of Labor has been delegated enforcement authority under the
Act. In such hearing, the Secretary of Labor may administer
oaths, examine witnesses, and receive evidence. For the purpose
of any such hearing or investigation, the authority contained
in sections 9 and 10 of the Federal Trade Commission Act (15
U.S.C. 49, 50), relating to the attendance of witnesses and the
production of books, papers, and documents, shall be available
to the Secretary of Labor.
TITLE IV--MISCELLANEOUS AND REFUGEE ASSISTANCE
CHAPTER 1--MISCELLANEOUS
* * * * * * *
authorization of appropriations
Sec. 404. (a) There are authorized to be appropriated such
sums as may be necessary to carry out the provisions of this
Act (other than chapter 2 of title IV).
(b)(1) There are authorized to be appropriated (for fiscal
year 1991 and any subsequent fiscal year) to an immigration
emergency fund, to be established in the Treasury, an amount
sufficient to provide for a balance of $35,000,000 in such
fund, to be used to carry out paragraph (2) [and], to provide
for an increase in border patrol or other enforcement
activities of the Service and for reimbursement of [State]
other Federal agencies and States and localities in providing
assistance as requested by the Attorney General in meeting an
immigration emergency, and for the costs associated with
repatriation of aliens attempting to enter the United States
illegally, whether apprehended within or outside the
territorial sea of the United States except that no amounts may
be withdrawn from such fund with respect to an emergency unless
the President has determined that the immigration emergency
exists and has certified such fact to the Judiciary Committees
of the House of Representatives and of the Senate. The fund may
be used for the costs of such repatriations without the
requirement for a determination by the President that an
immigration emergency exists.
(2)(A) Funds which are authorized to be appropriated by
paragraph (1), subject to the dollar limitation contained in
subparagraph (B), shall be available to Federal agencies
providing support to the Department of Justice, or by
application for the reimbursement of States and localities
providing assistance as required by the Attorney General, to
States and localities, whenever--
(i) a district director of the Service certifies to
the Commissioner that the number of asylum applications
filed in the respective district during a calendar
quarter exceeds by at least 1,000 the number of such
applications filed in that district during the
preceding calendar quarter,
* * * * * * *
CHAPTER 2--REFUGEE ASSISTANCE
* * * * * * *
AUTHORIZATION FOR PROGRAMS FOR DOMESTIC RESETTLEMENT OF AND ASSISTANCE
TO REFUGEES
Sec. 412. (a) Conditions and Considerations.--(1)(A) In
providing assistance under this section, the Director shall, to
the extent of available appropriations, (i) make available
sufficient resources for employment training and placement in
order to achieve economic self-sufficiency among refugees as
quickly as possible, (ii) provide refugees with the opportunity
to acquire sufficient English language training to enable them
to become effectively resettled as quickly as possible, (iii)
insure that cash assistance is made available to refugees in
such a manner as not to discourage their economic self-
sufficiency, in accordance with subsection (e)(2), and (iv)
insure that women have the same opportunities as men to
participate in training and instruction.
* * * * * * *
(c) Project Grants and Contracts for Services for
Refugees.--(1)(A) The Director is authorized to make grants to,
and enter into contracts with, public or private nonprofit
agencies for projects specifically designed--
* * * * * * *
(2)(A) The Director is authorized to make grants to States
for assistance to counties and similar areas in the States
where, because of factors such as unusually large refugee
populations (including secondary migration), high refugee
concentrations, and high use of public assistance by refugees,
there exists and can be demonstrated a specific need for
supplementation of available resources for services to
refugees.
* * * * * * *
(C) Except for the Targeted Assistance Ten Percent
Discretionary Program, all grants made available under this
paragraph for a fiscal year shall be allocated by the Office of
Refugee Resettlement in a manner that ensures that each
qualifying county receives the same amount of assistance for
each refugee and entrant residing in the county as of the
beginning of the fiscal year who arrived in the United States
not earlier than 60 months before the beginning of such fiscal
year.
P. Immigration and Nationality Technical Corrections Act of 1994
(Public Law 103-416, October 25, 1994)
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Immigration and Nationality
Technical Corrections Act of 1994''.
* * * * * * *
SEC. 225. CONSTRUCTION OF EXPEDITED DEPORTATION REQUIREMENTS.
No amendment made by this Act and nothing in [section
242(i) of the Immigration and Nationality Act (8 U.S.C.
1252(i))] sections 242(i) or 242A of the Immigration and
Nationality Act (8 U.S.C. 1252(i) or 1252a) shall be construed
to create any substantive or procedural right or benefit that
is legally enforceable by any party against the United States
or its agencies or officers or any other person.
IMMIGRATION ACT OF 1990
* * * * * * *
TITLE V--ENFORCEMENT
Subtitle A--Criminal Aliens
SEC. 501. AGGRAVATED FELONY DEFINITION.
(a) In General.--Paragraph (43) of section 101(a) (8 U.S.C.
1101(a)) is amended--
* * * * * * *
SEC. 512. AUTHORIZATION OF ADDITIONAL IMMIGRATION JUDGES FOR
DEPORTATION PROCEEDINGS INVOLVING CRIMINAL ALIENS.
There are authorized to be appropriated in each of fiscal
years 1991 through 1995 such sums as are necessary to provide
for 20 additional immigration judges in the Department of
Justice, to be used to conduct proceedings under section
[242A(d)] 242A(c) of the Immigration and Nationality Act (8
U.S.C. 1252a(d)).
* * * * * * *
Title XIII of the Violent Crime Control and Law Enforcement Act of 1994
(Public Law 103-322, September 13, 1994)
TITLE XIII--CRIMINAL ALIENS AND IMMIGRATION ENFORCEMENT
SEC. 130001. ENHANCEMENT OF PENALTIES FOR FAILING TO DEPART, OR
REENTERING, AFTER FINAL ORDER OF DEPORTATION.
(a) Failure To Depart.--[Omitted; amended section 242(e) of
the INA.]
(b) Reentry.--[Omitted; amended section 276(b) of the INA.]
SEC. 130007. EXPANDED SPECIAL DEPORTATION PROCEEDINGS.
(a) In General.--Subject to the availability of
appropriations, the Attorney General may expand the program
authorized by section [242A(d)]242A(c) and 2542(i) of the
Immigration and Nationality Act to ensure that such aliens are
immediately deportable upon their release from incarceration.
* * * * * * *